Electronic Discovery and Computer Forensics Case List (Organized by Topic)

Transcription

1 Electronic Discovery and Computer Forensics Case List (Organized by Topic) TABLE OF CONTENTS Discoverability... 2 Procedure Production of Data Costs Preservation & Spoliation Sanctions Work Product Doctrine & Privilege Experts Computer Forensic Protocols Admissibility

2 Discoverability In re Biomet, 2013 WL (N.D. Ind. Apr. 18, 2013). In this behemoth multidistrict litigation, the defendants used key word search to cull 19.5 million documents prior to leveraging predictive coding. Pointing to commentary questioning the efficacy of key word search, the Plaintiffs Steering Committee alleged that the defendants tainted the [search] process by sharply reducing the data universe to 2.5 million documents primarily with key words. Instead, the plaintiffs argued that the defendants should go back to square one with predictive coding. The defendants countered by evoking the proportionality principle at Fed.R.Civ.P. 26(b)(2)(C), stating that the benefits of starting over with predictive coding would be outweighed by the burden of doing so. The court framed the relative positions of the parties succinctly: It might be well that predictive coding, instead of a keyword search would unearth additional relevant documents. But it would cost Biomet a million, or millions, of dollars to test the Steering Committee s theory that predictive coding would produce a significantly greater number of relevant documents. The court found that the defendants were allowed to carry on with their chosen search approach and encouraged both parties to continue to confer over future discovery. Optiver Aus. Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., 2013 WL (N.D. Cal. Jan 23, 2013). After traditional discovery in this misappropriation case was unavailing, the plaintiff issued a subpoena to Google seeking s and Google Talk messages sent by the defendant s employees. The plaintiff sought, among other things, information pertaining to s, attachments and Google Talk messages containing specified search terms as well as information contained in the subject lines of various ESI. Moving to squash the subpoena, the defendant argued that the ESI sought is protected content under the Stored Communications Act (the SCA ). The court stated that the contents of an electronic communication is defined under the SCA as any information concerning the substance, purport, or meaning of that communication. The court held that the requests based on key word search necessarily reveal that the s identified contain the [key terms], which are words contained in the body of the communications exactly the sort of information the SCA sought to protect. Similarly, the court equated the requested subject line information to substantive information found in the body of a message or , noting that a message's subject line is nothing less than a pithy summary of the message's content. The court denied the key word request in its entirety and disallowed the portion of the second request that involved requests for subject line information. The court, however, permitted narrow requests for other metadata. Garcia v. City of Laredo, 2012 U.S. App. LEXIS (5th Cir. Tex. Dec. 12, 2012). In this employment case, the issue was whether a cell phone is a facility protected by the Stored Communications Act. The Stored Communications Act prohibits accessing without permission a facility through which an electronic communication service is provided. The plaintiff, a police dispatcher, was fired for violating police department rules. Text messages and images on the plaintiff s phone, which depicted the plaintiff s violation of police department rules, were accessed without plaintiff s permission by a police officer s wife, who then showed them to city officials. The court explained that while the term facility is not defined in the statute, courts have interpreted the statute to apply to telephone companies, internet or service providers, and bulletin board services, but not to an individual s computer, laptop or mobile device. The court further explained that the facilities that the SCA protects are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage. For those main reasons, the 2

3 appellate court affirmed the judgment of the district court in holding that the plaintiff s phone was not an SCA-protected facility. Richards v. Hertz Corp., 2012 WL (N.Y. App. Div. 2d Dept. Nov. 14, 2012). In this personal injury suit arising out of an automobile accident, the defendant sought all status reports, s, photographs, and videos posted on the private portions of the plaintiff s Facebook page. The defendants alleged that production was warranted because one of the plaintiffs posted to Facebook pictures of herself skiing, which were directly relevant to the plaintiff s testimony that the accident impaired her ability to play sports and caused her to suffer pain that was exacerbated in cold weather. The court found that the defendants met their burden, showing that the public images and other portions of the plaintiff s Facebook profile were reasonably calculated to lead to the discovery of information bearing on the plaintiff s claim E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., 2012 WL (D. Colo. Nov. 7, 2012). In this sexual harassment case, the defendant moved the court to compel production of information contained on the social media accounts of many of the twenty to twenty-two female class members. To show that the information sought was likely to be relevant, the defendants pointed to several publicly-available Facebook posts. For example, one plaintiff-intervenor s Facebook posts contained information about her emotional state, her financial expectations in this lawsuit, her post-termination employment, and her outlook on life post-termination. Viewing each of these categories as potentially relevant to the case, the court stated that if the information was contained on pages filed in the Everything About Me folder, it would need to be produced. Addressing whether the result should be different because the information is on Facebook, the court reasoned that volitionally storing and sharing the information on Facebook presents an even stronger case for production, at least as it concerns any privacy objection. Lifeng Chen et al. v. New Trend Apparel, Inc. et al., 2012 WL (S.D.N.Y. Oct. 2, 2012). In this case, two intervenor defendants moved to compel an inspection of a computer and production of documents from defendants New Trend Apparel and its principle, Ms. Byunglim Louie. Specifically, the movants asked for two items: first, Louie s computer, on which she uploaded relevant recordings of conversations, and second, a set of boxes of documents located in her apartment, notwithstanding the representation by counsel that movants had previously been given the CDs that contain these documents. The court granted the inspection of the boxes, but denied the inspection of the computer. The court stated that such inspections are granted only under limited circumstances when there is reason to believe that a litigant has destroyed evidence. Just because the recordings were uploaded onto the computer, the court reasoned, does not justify a forensic search of the computer. The court summarized, It is possible that movants are confusing a forensic search of a computer to be carried out at the behest of a discovering party with so-called e-discovery, which is conducted by the discovered party pursuant to a plan that is either agreed to by the litigants or ordered by the court. Mailhoit v. Home Depot U.S.A. Inc., 2012 WL (C.D. Cal. Sept. 7, 2012). In this employment discrimination case, the defendants requested broad discovery of the plaintiff s social networking accounts to evaluate the plaintiff s claims about her emotional and mental state. The defendants argued that such a broad request was valid because most modern communications between friends and/or about an individual s emotional state are communicated via social media. Noting similarities to EEOC v. Simply Storage Mgmt. which granted broad discovery of social media the court noted that other case law suggested that the Federal Rules do not grant a requesting party a generalized right to rummage at will through information that [the plaintiff] has limited from public view. As such, the court held the request to Fed. R. Civ. P. 34(b), which holds the requesting party to a reasonable particularity standard for discovery requests. Reviewing the 3

4 requests under this lens, the court found that three of the four categories of social media communications sought by the defendants failed to meet the standard imposed by Rule 34(b) and were thus not reasonably calculated to lead to the discovery of admissible evidence. Specifically, the request for communications related to any emotion, or in context were considered overly vague and far from reasonably particular. Although the court denied three of the four requests, they granted the defendants fourth request for social media communications between the plaintiff and her coworkers that referenced the defendants or her pending lawsuit. Robinson v. Jones Lang LaSalle Americas, Inc., 2012 WL (D. Or. Aug. 29, 2012). In this employment discrimination case, the defendant motioned to compel several categories of ESI from the plaintiff. Notably, the defendant s sought all social media content involving [the plaintiff] since July 1, 2008 that reveals or relates to [the plaintiff s] emotion, feeling, or mental state related to the alleged events in the plaintiff s complaint. Reviewing the defendant s requests, the court noted that although the plaintiff opposed the social media request separately, the court saw no principled reason to articulate different standards for the discoverability of text message, or social media platforms and analyzed the reasonableness of all ESI sought together. Specific to the social media data request, the court turned to EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), which recognized that social media was useful in proving or disproving a party s allegations and allotted broad discovery of social media. Finding that the plaintiff had already agreed to provide social media content directly referencing her allegedly discriminatory supervisor, the Magistrate Judge opted to apply a standard similar to Simply Storage and ordered broad disclosure of the plaintiff s social media content. Finally, the court clarified the scope of the compelled production, noting that although it is inherently difficult to define precise limits of reasonableness, counsel was expected to determine what falls within the scope of the order in good faith Thompson v. Autoliv ASP, Inc., 2012 WL (D. Nev. June 20, 2012). In this products liability case, the defendant moved to compel the injured plaintiff to produce complete and unredacted copies of [her] Facebook and other social networking site accounts. The defendant stated that prior to that formal motion, it obtained wall posts and photographs from the plaintiff s public Facebook profile that stood in contrast to her injury claims, and that the plaintiff changed her privacy settings shortly thereafter. In response, the plaintiff argued that the defendants request was an overly broad fishing expedition with no legitimate basis or relevance. Noting that relevance within the meaning of Fed. R. Civ. P. 26(b)(1) is considerably broader than relevance for trial purposes, the court found the plaintiff s social networking material discoverable. However, the court also extended the plaintiff some level of privacy, given her right to protection from annoyance, embarrassment, oppression, or undue burden, and directed the defense counsel not to disclose the material to anyone other than support staff. People v. Harris, 2011NY (NY Crim. Ct. New York Co. June 30, 2012). In this criminal matter arising out of the Occupy Wall Street protests, the court reviewed Twitter s motion to quash a subpoena, which ordered the production of tweets and pertinent metadata from a user s account. The threshold determination required an assessment of whether the criminal defendant or the third party respondent (Twitter) had standing to quash the subpoena. In line with the court s previous ruling on this matter, the court pointed to Twitter s terms and policy, holding that Twitter not the criminal defendant had standing to challenge the subpoena. Addressing Twitter s contention that responding to numerous subpoenas would result in an undue burden (and thus barred by the SCA), the court held that because all third party respondents bear this burden, the argument cannot be used to create standing for a defendant where none exists. Further, the court noted that it does not take much to search and provide the data to the court. The court found that 4

5 Twitter s services fall within the statutory definition of both an Electronic Communication Service (ECS) (generally, a communication service) and a Remote Communication Service (RCS) (generally, a storage service for substantive posts and metadata produced by the chat service). Equating public tweets to yelling on the street, the court further determined that the posts were not private and thus not outside of the scope of the SCA. Ultimately, the court largely denied Twitter s motion to quash the subpoena, holding that the prosecutor must obtain a search warrant for tweets within 180 days of the decision date to comply with the SCA. People v. Harris, 2012 WL (N.Y. Crim. Ct. April 20, 2012). In this case, the defendant sought to quash a subpoena seeking information from his Twitter account following his arrest for disorderly conduct during an October 2011 Occupy Wall Street Protest. As part of its prosecution, the District Attorney s office sent a subpoena duces tecum to Twitter, seeking tweets posted during a specified timeline from the defendant s alleged Twitter account. The defendant sought to quash the subpoena in his own right or, alternatively, intervene in the proceedings to quash as an affected party. Reviewing the record, the court analogized the Twitter account information to the bank records of a customer s account, to which the customer lacks ownership, possession, and standing to challenge a subpoena. Analyzing the nature of a Twitter account in which a user must agree to terms of service that grant Twitter the unfettered right to publicly post that user s information immediately the court held that the defendant had no proprietary or privacy interest in its tweets and ultimately lacked standing. The court further denied the motion to intervene, holding the subpoena would not prejudice the substantial rights of the intervening party because the subpoena was sought to address defenses the DA anticipated from the defendant. Finally, the court analyzed the subpoena under the Stored Communications Act (SCA), and found the subpoena adhered to all of the SCA s provisions for disclosure from a service provider of electronic communications. Tucker v. American Intern. Group, Inc., 2012 WL (D. Conn. Mar. 15, 2012). In this unlawful discharge claim against a former employer s insurer, the plaintiff sought to compel inspection of allegedly relevant electronic records in the possession of her non-party former employer. Noting that it had already turned over several hundred responsive documents, the former employer argued that allowing the plaintiff further investigation for missing s would be unduly burdensome under 26(b)(2)(C). In order to show that additional discovery would be unnecessarily duplicative, the former employer described that the plaintiff had already had some prior success in discovering the sought-after s through alternative methods of discovery and that the plaintiff could only speculate that the employer actually possesses the information. Carving out its undue burden argument, the former employer pointed to the affidavit of an IT director who contended that the plaintiff s computer had been repurposed pursuant to company policy since her termination. While the plaintiff s hard drive had been mirror-imaged, the image was indistinguishable from the images of eighty-two other employers terminated at the time of a force reduction. In order to allow for further investigation, all eighty-three images would have to be restored[,] analyzed and hosted on a new server. Noting that courts should protect non-parties from significant expense and burden of compelled inspections, the court agreed with the former employer and cited Zubalake to stay the further investigation. Custom Hardware Eng g & Consulting, Inc. v. Dowell, 2012 WL (E.D. Mo. Jan. 3, 2012). In this trade secret litigation, the plaintiff submitted a discovery proposal that accounted for acronyms and misspellings of specified search terms. The defendants objected, believing such terms were overbroad and offered their own proposal that required precise matches of the search terms. Responding, the plaintiff objected that the defendants proposal was unduly narrow and likely to prevent the production of discoverable ESI. Before analyzing the parties claims, the court 5

6 advised the parties to exercise greater civility to avoid putting the court in the position of having to craft keyword search methodology without adequate information. Responding, the court found that each of the defendants concerns lacked evidence to substantiate their fears of producing irrelevant or privileged documents, further noting that the plaintiff s requests were well within the defendants duty to produce all responsive information. Additionally, when reviewing the defendants proposed list, the court found that requiring exact keyword matches would fail to produce relevant documents, effectively stifling the plaintiff s discovery efforts. As such, the court ordered that discovery be conducted according to the plaintiff s proposed search terms. Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. Jan. 2012). In this slip and fall case, the defendants sought a court order granting it access to the plaintiff s entire Facebook account. Citing McMillen v. Hummingbird Speedway, Inc. and Romano v. Steelcase, Inc., the defendants asserted that nonpublic Facebook postings are generally not protected by any privacy privilege. Next, the defendants attempted to show that the private portions sought were reasonably calculated to lead to admissible evidence. The defendants argued that publicly available photos of the plaintiff standing at a birthday party in Florida while holding a small dog were inconsistent with her claims of inability to work and enjoy life. While the court agreed with defendants that there is no such thing as a social media privilege, it noted that the defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Distinguishing McMillen and Romano, the court ruled that the defendant s preliminary showing was not enough to show any inconsistency with the plaintiff s damage claims. Offenback v. L.M. Bowman, Inc., 2011 WL (M.D. Pa. June 22, 2011). In this personal injury case, the defendants requested an in camera review of the plaintiff's Facebook and MySpace accounts, arguing the plaintiff's claims of physical and psychological impairment made relevant any evidence that documented the plaintiff's social life, physical capabilities and emotional state of mind. To the extent that such information was relevant under Fed.R.Civ.P. 26, the plaintiff agreed that limited public information on his Facebook account was discoverable and provided the password to the court (the plaintiff claimed he could no longer access his MySpace account). Upon review, the court agreed to the relevance of a limited amount of photographs and postings that reflected the plaintiff continued to ride motorcycles, went hunting and rode a mule, and ordered production of this information. In a closing footnote, the court stated it was confused as to why intervention was necessary since the parties agreed that at least some of the information was relevant. The court further noted the plaintiff should have reviewed his own Facebook account for potentially responsive information, only soliciting the court's assistance if a dispute remained. Muniz v. United Parcel Serv., Inc., 2011 WL (N.D. Cal. Jan. 28, 2011). In this employment discrimination litigation, the plaintiff moved to quash the defendants' third party subpoena seeking additional documentation related to the plaintiff's previous motion for attorney fees. Among the documentation sought by the defendants were postings by the attorney on listservs and social media networks (including LinkedIn and Facebook). To demonstrate the relevancy of the demand, the defendants submitted postings from the attorney's Facebook page and listservs. Denying the defendants' request for this information, the court found the subpoena was not appropriately geared toward revealing information relevant to the fee dispute and ordered the postings submitted by the defendants to be removed from the record. The court also noted that the dispute had already "spiraled into the kind of wasteful and time consuming satellite litigation' that should not occur in post-trial fee disputes." In the Matter of the Application of the U.S. of Am. for an Order Directing a Provider of Elec. Commc n Serv. to Disclose Records to the Gov t, 620 F.3d 304 (3d Cir. 2010). In this ongoing criminal investigation, the federal government appealed a twice-denied request to compel 6

7 production of a customer s historical cellular tower data, also known as cell site location information (CSLI). The government sought the CSLI of unidentified subscribers pursuant to a court order under 2703(d) of the Stored Communications Act (SCA). Reviewing the magistrate judge s analysis, the court rejected the premise that because CSLI could potentially be used to track individuals, it required the traditional probable cause necessary for a warrant. Citing legislative history and two U.S. Supreme Court decisions, the court found that CSLI would only encroach upon reasonable expectations of privacy if used to track individuals out of public view an inference not supported by the record. However, the court determined 2703(c) created a sliding scale standard, granting a judge discretion to require the government to obtain a warrant based on probable cause. Holding that 2703(d) provided the minimum standard required, the court vacated the order and remanded for additional fact finding. McMillen v. Hummingbird Speedway, Inc., No CD (C.P. Jefferson Sept. 9, 2010). In this personal injury litigation, the defendants sought production of the user names, log-in names and passwords granting access to the plaintiff s Facebook and MySpace accounts. Having found comments on the public portions of the plaintiff s social media sites indicated the plaintiff exaggerated his injuries, the defendants argued that private portions might similarly contain impeaching content. Objecting, the plaintiff contended that communications shared among private friends on social network sites are confidential and thus protected against disclosure. Equating the plaintiff s argument with a request for a new social network site privilege, the court expressed concern that recognizing such a privilege would contravene the purpose and policy of Pennsylvania s broad discovery rules. Thus, finding no reasonable expectation of confidentiality given the clear language contained on both sites regarding the possibility of disclosure, no subjective or objective relational need for privilege outside of attorney-client communications and a failure to outweigh the interests of justice, the court ordered the plaintiff to preserve existing information and provide his Facebook and MySpace user names and passwords to the defendants counsel. Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010). In this personal injury action, the defendants sought access to the plaintiff s current and historical Facebook and MySpace accounts, including all deleted pages and related information, which may have contained information inconsistent with claims made concerning the extent and nature of the plaintiff s injuries. The court found that the public portions of the plaintiff s social networking sites contained content that was material and necessary to the litigation, and discerned a reasonable likelihood that the same would hold true as to the private portions. Despite the plaintiff s objections on privacy grounds, the court cited privacy disclaimers in the MySpace and Facebook policies, and held that production of the plaintiff s social network account entries would not violate her privacy rights. The court also found the defendant s need for the information outweighed any privacy concerns, and determined that preventing access would directly contravene the strong public policy in favor of open disclosure and condone attempts to hide relevant information behind self-regulated privacy settings. Noting commentary that privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking, and that sharing personal information with others is the very nature and purpose of social networking sites the court ordered the plaintiff to provide necessary authorization for access. In re Payment Card Interchange Fee and Merch. Disc. Antitrust Litig., 2010 WL (E.D.N.Y. Aug. 27, 2010). In this ongoing antitrust litigation, the defendants appealed an order compelling the production of recordings and reports created pursuant to an investigation by the European Commission into the defendants business practices in Europe. Joining the defendants as amicus curiae, the Commission argued the information was confidential under European law 7

8 and that the doctrine of international comity should deny access to the plaintiffs. Analyzing the foreign and domestic interests using the balancing test in the Restatement (Third) of Foreign Relations Law 442, the court acknowledged the U.S. policy of broad discovery oriented toward increasing fairness and accuracy in litigation and noted that foreign laws purporting to restrict disclosure of information relevant to U.S. litigation are generally ineffective. On the other hand, the court found that the Commission s interests would be significantly undermined if its confidentiality rules were disregarded, the documents originated in Europe and the information could be obtained through other avenues. Despite the fact that the requested documents were likely to contain relevant information, the court denied disclosure finding the interests of international comity weighed in favor of the Commission. Crispin v. Christian Audigier, Inc., 2010 WL (C.D.Cal. May 26, 2010). In this dispute over artwork licensing, the plaintiff moved to quash the defendants subpoenas on the social networking sites Facebook, MySpace, Inc. and Media Temple, Inc., which sought the plaintiff s basic subscriber information and certain electronic communications. Appealing the magistrate judge s order, the plaintiff claimed the Stored Communications Act (SCA) prohibits third-party Internet Service Providers from disclosing such communications. Agreeing with the plaintiff that some communications sought were not strictly public, the court quashed the subpoenas that sought private messaging (such as -type communications). With respect to the portion of subpoenas that sought information from the plaintiff s Facebook wall and MySpace postings and comments, the court vacated and remanded for further investigation to determine the plaintiff s privacy settings and the extent of access allowed to his Facebook wall and MySpace comments. Cornwell v. N. Ohio Surgical Ctr., Ltd., 2009 WL (Ohio App. 6 Dist. Dec. 31, 2009). In this wrongful death litigation, the defendants appealed the trial court's ruling allowing the plaintiff's forensic expert to create a mirror image of the defendants' hard drives. The defendants asserted such intrusive access was not authorized under Fed.R.Civ.P. 34 and would violate prohibitions against the disclosure of confidential medical information. In affirming the trial court's order, the appellate court dismissed the confidentiality argument, relying on testimony of the plaintiff's expert explaining that viewing confidential information was not necessary to the forensic imaging process. The court also discarded the defendants' Rule 34 argument, noting that the circumstances surrounding the case gave rise to an inference of improper conduct on part of the defendants. In further support of the trial court's decision, the court noted the direct relationship between the plaintiff's claims and the hard drives and said the specific protocol and search terms established by the trial court made the defendants' arguments meritless. Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL (W.D. Wash. Apr. 30, 2009). In this discovery dispute, the plaintiff sought production of s from a specified time period. The defendant argued the s were archived on the company's "cumbersome" old system and were not reasonably accessible under Fed.R.Civ.P 26(b)(2)(B). In support of the position, the defendant's information technology representative made several claims, including that accessing the s would be disruptive to business operations and would take nearly four years to restore. The representative also provided an initial cost estimate for the work of $88,000, but upped the ante six months later to $834,285. The court noted that the representative "provided exaggerated reasons and exaggerated expenses as to why the [defendant] allegedly [could not] or should not be ordered to comply with its discovery obligations." The court found that the plaintiff should not be disadvantaged since the defendant, a "sophisticated" company, chose not to migrate the s to the now-functional archival system and thus determined that the s were reasonably accessible. Furthermore, the court explained that even if the information was ruled not reasonably accessible, good cause existed to order production. 8

9 Calixto v. Watson Bowman Acme Corp., 2009 WL (S.D. Fla. Nov. 16, 2009). In this tortious interference of a contract suit, the plaintiff alleged the defendant "spoliated electronic documents in the face of ongoing litigation." As such, the plaintiff sought an order requiring the defendant to obtain and fund a restoration and search of its 37 backup tapes. The defendant argued the backup tapes were not reasonably accessible and that no further relevant evidence existed on the tapes as a litigation hold was in effect. Finding the plaintiff failed to establish a reasonable expectation that the benefit of restoring the backup tapes would outweigh the burden, the court declined to impose the significant costs to restore, search and review the tapes on the defendant. The court also declined to impose sanctions because no bad faith existed regarding the defendant's IT employee's deletion of an box as part of a regular practice. However, the court concluded one of the backup tapes may contain discoverable records because it was unclear when the box deletion occurred and ordered the tape's restoration and search. Lake v. City of Phoenix, 2009 WL (Ariz.Ct.App. Jan. 13, 2009). In this special action to compel the defendant City to produce public records, the plaintiff appealed a lower court decision denying his motion to compel the production of metadata. The plaintiff argued metadata was necessary to determine whether the produced notes were backdated and for authentication purposes. The defendant argued that metadata is not a public record. Agreeing with the defendant, the court affirmed the lower court s holding that metadata is not a public record and need not be produced. Aguilar v. Immigration & Customs Enforcement Divis. of United States Dept. of Homeland Security, 2008 WL (S.D.N.Y. Nov. 21, 2008). In this civil rights class action alleging unlawful searches of homes, the plaintiffs sought production of metadata from various types of ESI including , word and excel documents and databases. Noting that the production of metadata should have been discussed at the Fed.R.Civ.P. 26(f) conference, the court went on to consider the various metadata production requests. Regarding s and backup tapes, the court found the plaintiffs requests untimely and too costly for the little benefit potentially gained. The court then discussed Word documents and PowerPoint presentations and ordered the production of metadata if the plaintiffs were willing to bear all costs associated with its production; despite finding the metadata sought was marginally relevant, not critical to pretrial presentation and was untimely requested. Additionally, declining to find production unduly burdensome for Excel spreadsheets, the court granted production of the metadata as requested from Excel files. Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008). In this case, the plaintiffs appealed the district court s ruling, claiming the defendants violated the Stored Communications Act ( SCA ) and their Fourth Amendment rights by producing plaintiff s text messages to the police department. The police department claimed it sought the plaintiffs text message transcripts to determine if the usage overages the plaintiffs incurred were due to personal messages. Categorizing the defendant service provider as an electronic communication service (ECS) that knowingly provided transcripts of the text messages to the defendant City who was merely a subscriber and not an addressee or intended recipient of such communication, the court determined the defendant violated the SCA and remanded the case to the district court. The court also agreed with the plaintiffs that the search violated the Fourth Amendment, finding that the plaintiffs had a reasonable expectation of privacy in the text messages stored on the service provider s network and that the search was conducted unreasonably and intrusively. Flagg v. City of Detroit, 2008 WL (E.D.Mich. Aug. 22, 2008). In this ongoing wrongful death action, the court previously determined text messages of certain city employees were potentially discoverable and established a protocol under which two designated magistrate judges would make the initial determination as to their discoverability. In this current dispute, the 9

10 defendants sought to prevent discovery from going forward, arguing that the court s previous order violated the Stored Communications Act ( SCA ), claiming it wholly precludes the production of electronic communications stored by a non-party service provider in civil litigation. Rejecting the defendants reading of the SCA, the court held that possession for purposes of requiring production includes control over the information, which defendants maintained through its contractual relationship with the non-party service provider. However, the court was willing to modify the means of production - holding that the third party subpoena was unnecessary and instead the court ordered the plaintiff to file a Fed.R.Civ.P. 34 production request. See also Flagg v. City of Detroit, 2008 WL (E.D.Mich. Mar. 20, 2008). Sprenger v. Rector and Bd. of Visitors of Va. Tech, 2008 WL (W.D.Va. June 17, 2008). In this disability and civil rights litigation, the plaintiff filed a motion to quash a subpoena issued by the defendants to a third party agency, seeking all electronically stored information on various pieces of media utilized by her husband. Specifically, the defendants sought sent between the plaintiff and her husband regarding her medical condition. The plaintiff argued the subpoena was overbroad, burdensome and sought records protected by spousal privilege. The defendants argued that any spousal privilege was obviated by the fact that both the plaintiff and her husband were state agency employees and the state has both the right to monitor employee and a written policy which provides employees should have no expectation of internet privacy. In this case of first impression, the court considered persuasive precedent and determined the defendants did not meet their burden of demonstrating a waiver of privilege after noting the defendants had provided no evidence that the plaintiff or her husband were aware of the internet usage policy, and thereby granted the plaintiff s motion. Hope for Families & Cmty. Serv., Inc. v. Warren, 2008 WL (M.D. Ala. May 15, 2008). In this gaming regulation dispute, the plaintiffs filed a motion to compel production. The defendants provided numerous defenses to the plaintiffs motion, claiming the documents and electronic information were protected by attorney-client privilege; the request sought trade secret and competitive information; the documents sought were not relevant; and the request was overbroad and unduly burdensome. Granting in part the plaintiffs motion to compel, the court ordered production of specified requested documents finding the documents to be relevant. The court referenced a previously entered protective order to ease the defendants fears regarding a potential exposure of trade secrets. Additionally, the court stated that a future review will be completed to determine attorney client privilege issues. City of Seattle v. Prof l Basketball Club, LLC, 2008 WL (W.D.Wash. Feb. 25, 2008). In this dispute over performance of a lease agreement, the plaintiff filed a motion to compel the defendant to search and produce responsive s from six of its eight members. Having produced 150,000 s from two of the members, the defendant objected to this request, claiming the search would increase the universe exponentially and would generally produce irrelevant documents. Finding a principal-agent relationship between the defendant and its members, the court determined sufficient cause to demand the documents from its members as the defendant was in possession, custody or control of the s at issue. The court, therefore, ordered the defendant to produce from the remaining four members at issue, finding the defendant s claim of burden to be insufficient under Fed.R.Civ.Pro. 26(b)(2)(B). Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL (N.D.Ga. Feb. 25, 2008). In this employment discrimination suit alleging company-wide sexual harassment, the plaintiffs filed a renewed motion to compel the defendants to produce documents, including s, that were sexual or of a gender derogatory nature from 1998 through The defendants claimed the e- mail was not reasonably accessible due to undue burden and cost as it required the restoration of 10

11 numerous backup tapes and claimed fees of $79,300 for restoration from a single employee over a two year period. Agreeing with the defendants, the court found the burden of the request to outweigh the likely benefit and limited the retrieval to two narrow categories of (1) undeleted of current employees specifically named by the plaintiffs; and (2) any relevant s of the nature cited by the plaintiff of which the defendants were aware of and had retained. Additionally, the court denied the plaintiffs request for spoliation sanctions, finding the defendants document destruction policy reasonable. Arista Records LLC v. Does 1-7, 2008 WL (M.D.Ga. Feb. 25, 2008). In this copyright infringement suit, the plaintiffs filed a motion seeking expedited discovery to obtain basic information about the alleged infringers from the third-party Internet Service Provider. The plaintiffs sought the name, current and permanent address, phone number, address and Media Access Control address for the individuals linked to the Internet Protocol addresses involved in the alleged distribution of the copyrighted materials over the peer-to-peer file sharing network at issue. The court granted the motion based on good cause established by the lack of other means to obtain the information and the prima facia showing of copyright infringement, combined with the expediency created by the limited retention of user activity logs. Simon Prop. Group, Inc. v. Taubman Ctr., Inc., 2008 WL (E.D.Mich. Jan. 24, 2008). In this suit involving securities and tort claims, the defendant contested the enforcement of third-party subpoenas. The defendant argued that compliance with the subpoenas would be unduly burdensome and expensive since the search terms provided by the plaintiffs resulted in the identification of over 250,000 files. The defendant claimed it would take three full-time employees four weeks to determine the responsiveness of those documents. The plaintiffs offered to narrow the scope of the search by time period, search terms and perhaps even limit the number of servers to be searched. The court granted the plaintiffs motion to enforce the subpoenas, holding the requests were not unduly burdensome as discovery of electronic files are common place in business litigation. Eckhardt v. Bank of America, 2008 WL (W.D.N.C. Jan. 9, 2008). In this wrongful termination suit based on alleged disability discrimination, the plaintiff filed a motion to compel responses to several interrogatories and document requests. The defendant objected to several of the plaintiff s requests claiming the requests did not lead to the production or discovery of relevant evidence. Disagreeing with the defendant, the court ordered the defendant to certify that a thorough search was conducted and outlining what responsive, but not readily accessible, documents might be retained in archive form or backup media. Hubbard v. Potter, 2008 WL (D.D.C. Jan. 3, 2008). In this suit, the plaintiffs claimed they were denied an interpreter at safety meetings, preventing them from safely and properly performing their duties. The defendant filed a motion to end pre-certification discovery, arguing the plaintiff had adequate time to complete discovery. The plaintiffs argued that the defendant s production was insufficient and incomplete. The court granted the defendant s motion and found that the plaintiffs failed to show that documents produced by the defendant permitted a reasonable deduction that other documents existed and refused to rely on the plaintiffs mere hunch or speculation. The plaintiffs also claimed additional discovery was warranted due to the defendant s labeling of responsive documents as non-responsive and failing to initially produce them. Based on this argument, the court ordered an evidentiary hearing to determine whether additional production may be warranted. Kellogg v. Nike, Inc., 2007 WL (D.Neb. Dec. 26, 2007). In this patent infringement suit, the plaintiff filed a motion to compel, alleging the defendants response to production requests was slow and evasive in regard to electronically stored information. The plaintiff also sought 11

12 documents from a privilege log allegedly created prior to the defendants knowledge of the impending litigation. In regard to the first issue, the plaintiff argued that the defendants failed to provide information regarding document retention and preservation policies. Subsequent to the filing of the motion, the plaintiff deposed a Rule 30(b)(6) witness regarding the defendants document retention policy. At the time of the hearing, the plaintiff did not dispute he had all the information sought with regard to information document storing. As such, the court did not compel the defendants to supplement their discovery responses. Because of the plaintiff s failure to make a good faith effort to resolve the discovery issue and the defendants willingness to produce the requested information, the court refused to impose sanctions. In regard to the privilege log, the plaintiffs argued that privilege did not apply as the documents were generated before the threat of litigation and the underlying facts are not privileged. The court disagreed with the plaintiffs in that the document creation date controlled the privilege analysis and held that the documents were protected by the attorney-client privilege and therefore not discoverable. Kelly v. Montgomery Lynch & Assoc., 2007 WL (N.D.Ohio Dec. 13, 2007). In this lawsuit, the plaintiff filed a motion to compel discovery necessary to support a motion for class certification. The defendant claimed the discovery request was unduly burdensome because the filing system was not maintained in a searchable format. Finding the defendant did not make a reasonable inquiry into the discovery request apart from claiming an undue burden, the court ordered the defendant to comply with the plaintiff s narrowly tailored discovery request. Additionally, the court strongly advised the parties to make a sincere attempt at cooperation in the discovery process. The court further warned the defendant that a failure to comply will result in the consideration of sanctions. Palgut v. City of Colorado Springs, 2007 WL (D.Colo. Dec. 3, 2007). In this suit, the plaintiff filed a motion to reconsider discovery rulings made by the magistrate judge and to compel responses to previous discovery requests and further discovery to prove unlawful spoliation of ESI. The court made several findings: the plaintiff s requests were overbroad and unduly burdensome (affirming a prior ruling); the defendant completed an adequate search for all relevant ESI and agreed to complete and pay for an additional search; according to Rule 34 of the FRCP, the plaintiff was no more entitled to the defendant s ESI than to a warehouse storing paper documents; and the defendant s backup tapes were not reasonably accessible due to the lack of hardware to access them and the cost of restoration, which outweighed any possible return of relevant information. Based on these findings, the court denied the plaintiff s motions and ordered each party to pay their own attorney fees. In re Boucher, 2007 WL (D.Vt. Nov. 29, 2007). In this criminal case, the defendant was stopped at the customs and border station while entering Vermont from Canada. Agents searched his laptop and found what appeared to be images of child pornography. The defendant was arrested and charged with transportation of child pornography. After imagining the defendant's hard drive, agents learned they were unable to further access the files on the drive because the files were encrypted, password protected and inaccessible. Thereafter, the government subpoenaed the defendant and directed him to provide all documents that reflected the password. The defendant moved to quash the subpoena, claiming compliance would violate his Fifth Amendment right against self incrimination. The court reiterated the requirements for Fifth Amendment protection as: a compelled, testimonial communication that is incriminating in nature. The court determined that a subpoena constitutes compulsion because it requires compliance and as the files sought allegedly contained child pornography, entry of the password would therefore be incriminating. As such, the contentious issue was whether entry of the password constituted a testimonial communication. The court held that entering a password into a computer communicates 12

13 facts that convey the contents of one s mind, and therefore found the act of entering this password to be testimonial, implicitly demonstrating that the defendant knew the password and had access to the files. The court therefore granted the defendant's motion to quash the subpoena. Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL (D.Minn. Nov. 29, 2007). In this claim alleging inter alia, breach of contract, the plaintiff, a commercial tenant, brought suit against the defendant landlords. Following the issuance of the magistrate judge s discovery order, both parties filed objections. The plaintiff objected to the magistrate judge s order as it required production of an alternative database prepared for another litigation. The defendants objected to the magistrate judge s order to the extent that it denied the defendants motion to compel the plaintiff to fulfill its discovery obligations. After conducting a Fed. R. Civ. P. 26(b) and Zubulake analysis, the court found that the high costs associated with restoring the database did not allow the previous discovery database to be reasonably accessible. In response, the defendants claimed that the plaintiff should have been on notice of potential production and thus had a duty to preserve the database due to this pending litigation. Disagreeing with the defendants objection, the court found the database to be relevant in any potential litigation and that specific discovery requests did not exist to create an obligation to maintain the database. The court then conducted a good cause analysis using seven factors as required by Fed. R. Civ. P. 26(b)(2)(B) to determine if discovery using the database should be permitted. Despite the defendants concerns, the court found that the absence of specific arguments to connect the concerns to the magistrate judge s discovery order could not constitute sufficient good cause to order restoration of the database. U & I Corp. v. Advanced Med. Design, Inc., 2007 WL (M.D.Fla. Nov. 26, 2007). In this breach of contract case, the defendant filed a second motion to compel and sought sanctions for insufficient compliance with the first motion to compel, claiming the plaintiff failed to produce numerous attachments, relevant correspondence and certain critical documents identified by Bates number. The plaintiff countered with a motion for a protective order, arguing that the request was unduly burdensome as the parties already exchanged over six thousand pages. The court was not persuaded by the plaintiff s vague assertion and denied the motion for the protective order. The defendant also subpoenaed similar documents from a non-party who sought to squash the subpoena, claiming undue burden. The court was again not persuaded by the lack of detail provided as to the efforts required to comply and upheld the subpoena. Before ruling on the issue of sanctions, the court ordered the plaintiff to submit an affidavit from its corporate representative detailing the cause of the missing information and efforts undertaken to retrieve it. Am. Fast Freight, Inc. v. Nat l Consolidation & Distribution, Inc., 2007 WL (W.D.Wash. Nov. 7, 2007). In this suit alleging breach of contract, the plaintiffs filed a motion to compel discovery of material relevant to the claim that the defendant intentionally used a corporate alter ego to evade duties to the plaintiffs. The defendant argued that the sought after information would not lead to the production of relevant information and that the burden of production outweighed the plaintiffs likely benefit. The court ordered production consistent with the plaintiffs request and listed five factors relevant in determining the burden question: 1) the needs of the case; 2) the amount in controversy; 3) the parties resources; 4) the importance of the issue at stake; and 5) the importance of the proposed discovery. Further, court found that the breadth of the discovery requests justified the defendant s failure to produce documents and denied the plaintiffs request for attorney s fees. Muro v. Target Corp., 2007 WL (N.D.Ill. Nov. 2, 2007). In this suit, the plaintiff alleged the defendants sent unsolicited credit cards in the mail which violated the Truth in Lending Act and sought class-action certification. Several discovery disputes ensued, involving questions regarding 13

14 the discoverability of the defendants litigation hold notices and adequacy of the defendants privilege log. The court upheld the magistrate judge s finding that the defendants litigation hold notice was protected by the work-product doctrine. Relying upon Upjohn Co. v. United States, 449 U.S. 383 (1981), the court found that Fed. R. Civ. P. 26(b)(5)(A) does not require privilege logs to separate entries of multiple s within the same string and that a single of a forwarded chain to counsel is protected by the attorney-client privilege. However, the court found serious defects in the defendants privilege log because it failed to identify all of the recipients of some messages and the plaintiff was unable to assess whether recipients fell within the sphere of corporate privilege. The log also used sometimes-cryptic job titles to explain the recipients of e- mails, which made it difficult to assess the applicability of privilege. The court allowed the defendants ten days to submit a revised privilege log addressing the above defects so the court could perform an in camera review and determine privilege protection. Benton v. Dlorah, Inc., 2007 WL (D.Kan. Oct. 30, 2007). In this employment discrimination suit, the defendants moved to compel the plaintiff to produce documents responsive to their requests for production and the hard drive of the plaintiff s personal computer. The defendants also sought sanctions for the plaintiff s failure to provide complete responses and alleged destruction of evidence. The defendants argued that the plaintiff admittedly deleted and failed to produce relevant communications with her husband and students. Further, the plaintiff used her personal computer to send and delete hundreds of responsive s, therefore, entitling the defendants to the plaintiff s personal computer hard drive for retrieval of the deleted e- mails. The plaintiff objected, claiming the hard drive contained personal, privileged information beyond the scope of discovery. The court ordered the plaintiff to produce her personal computer for inspection by a forensic specialist, limited in scope to topics responsive to the production requests, and ordered the plaintiff to pay $1,000 in sanctions to reimburse the defendants for costs associated with filing of this motion. Sims v. Lakeside School, 2007 WL (W.D.Wash. Sept. 20, 2007). In this discovery dispute, the defendant made an image of the plaintiff s employer-owned laptop with no objection from the plaintiff. Shortly thereafter, the plaintiff objected, prompting the defendant to file this motion to compel review of the hard drive. The court found the plaintiff had no reasonable expectation of privacy since the laptop was furnished by his employer and clearly articulated in the employee manual. The court granted the defendant s request to review the contents of the plaintiff s hard drive excluding web-based generated s, communications between the plaintiff and his spouse (marital communications privilege) and communications between the plaintiff and his attorney (attorney client privilege). Agreeing with the defendant s proposal as to how the hard drive should be imaged, the court ordered the defendant to provide, at its expense, the parties with a list of files from the plaintiff s computer, allowing the plaintiff a chance to review for any privileged files. State ex rel. Gehl v. Connors, 2007 WL (Wis.Ct.App. Oct. 18, 2007). In this dispute over the production of public records, the petitioner appealed the circuit court s decision to deny his petition seeking communications under the public records law. The petitioner claimed county government officials improperly denied his request per the public records law and wrongfully failed to retain responsive s. The petitioner additionally requested the search of approximately 150 backup tapes and more than thirty employees computer hard drives for over 20 keywords. Affirming the circuit court s decision, the court found the petitioner s request to be overbroad and overly burdensome, finding that the right to inspect public records is not absolute. The court noted that the request virtually sought every passed between all employees of the county named in the request over a two-year period. In addition, the court stated that the search terms chosen by 14

15 the petitioner were broad on their face as to require the production of records relating to virtually all county zoning matters over a two-year period. State v. Wells, 2007 WL (Minn.App. September 25, 2007). In this criminal case, the defendant was charged with illegal dissemination and possession of child pornography and motioned the court to compel the state to provide copies of all electronic information and a forensic copy of his seized computer hard drive. The district court denied the motion and certified the question to this court to determine whether the state is required to produce such information in a child pornography case. The defendant argued withholding the information sought violated his right to effective assistance of counsel and due process of law, but the court did not agree. Noting that under federal law the state is prohibited from producing child pornography to a defendant and that child pornography is contraband, the court affirmed the trial court s decision. Tomlinson v. El Paso Corp., 2007 WL (D.Colo. Aug. 31, 2007). In this retirement benefits litigation, pension plan participants sought production of electronic pension plan records from the defendant employer. The defendant maintained it could not produce the data because it was in the possession of a third-party plan record-keeper. The plaintiffs argued that the defendant had a duty under the Employment Retirement Income Security Act (ERISA) to maintain the data for inspection or examination. In light of the defendant s obligations under ERISA, the Court held the data was in the defendant s possession, custody or control within the meaning of Fed. R. Civ. P. 26(a)(1)(B) and subsequently ordered production of the requested documents. Columbia Pictures, Inc. v. Bunnell, 2007 WL (C.D.Cal. Aug. 24, 2007). In this copyright infringement litigation the defendant, the operator of a website engine that enables users to locate and download dot-torrent files, sought review of a magistrate's order requiring production of server log data stored in random access memory (RAM). The defendant argued that data stored in RAM is too ephemeral and temporary to be considered electronically stored information (ESI) within the meaning of Fed. R. Civ. P. 34(a). Citing the Advisory Committee Notes to the Rules, the court explained that Fed. R. Civ. P. 34(a) was to be read expansively and denied the motion. Responding to concerns about the potential impact of the decision with respect to individual and business record-keeping obligations, the court held the decision was limited to the defendant in this case, who, only after the issuance of a court order, was obliged to preserve and produce the server log data. In re Seroquel Prod. Liab. Litig., 2007 WL (M.D.Fla. Aug. 21, 2007). In this multidistrict product liability litigation, the plaintiffs motioned the court to impose sanctions on the defendant for failing to timely comply with discovery obligations. The plaintiffs pointed to numerous instances where the defendant failed to produce documents in an accessible or useable format, in addition to missing numerous deadlines. While the court found two of those instances to be excusably negligent, the other behavior warranted sanctions. The court was extremely displeased with the defendant s failure to discuss keyword search terms with the plaintiffs, failure to include page breaks between documents it did produce, failure to produce usable single-page tiff documents, omission of attachments and relevant s, and purposeful sluggishness in making an effective production. The court stayed the determination of which sanctions to impose to allow the plaintiffs an opportunity to present evidence as to their damages or prejudice. Butler v. Kmart Corp., 2007 WL (N.D.Miss. Aug. 20, 2007). In this case, the plaintiff motioned the court to order the defendant to comply with earlier discovery requests and argued that defendant s mere attempt to locate documents did not sufficiently discharge its discovery obligations. The defendant produced affidavits attesting to its search efforts for documents at the relevant locations and lack of results, but mentioned very little about whether it conducted searches of its computer systems. The court ordered the defendant to produce responsive ESI or 15

16 demonstrate unsuccessful diligent searching. The plaintiff also sought open access to the defendant s home office databases, but the court denied the motion based on the lack of evidence of improper action. KnifeSource, LLC v. Wachovia Bank, N.A., 2007 WL (D.S.C. Aug. 10, 2007). In a suit alleging common law and UCC conversion, the plaintiff motioned the court to compel the defendant s production of all bank statements from a specified person who allegedly altered the payee information on checks to deposit them in her personal account at the defendant s bank. The defendant claimed it could not comply with such request, arguing that it did not maintain copies of the statements and therefore such an order would require it to create documents for the sole purpose of complying with this discovery request. As the defendant merely claimed it did not maintain physical copies of the requested information, not that it did not have the information, the court held that it failed to demonstrate the information was not reasonably accessible. The court ordered the defendant to comply with the request to the extent the information was maintained electronically. Modern Eng'g, Inc. v. Peterson, 2007 WL (C.D.Ill, July 16, 2007). In this employment contract dispute, the plaintiff alleged the defendant ed sensitive information to the plaintiff's largest competitor in an attempt to gain employment with that competitor. The plaintiff sought production of all electronic communications sent by the defendant to certain third parties and the defendant objected, arguing they did not belong to him and were in the possession of his current employer. The court held that the defendant was not obligated to produce documents in the care, custody or control of his employer, but ordered him to produce responsive documents that were in his own care, custody or control, regardless of the ownership of those documents. State of Ohio v. Rivas, 2007 Ohio App. LEXIS 3299 (Ohio.App. July 13, 2007). In a suit where the defendant challenged his conviction for importuning and attempted unlawful sexual conduct with a minor, the defendant challenged the trial court s denial of his request to obtain a copy of the police department s hard drive where records of online chats were stored. The defendant argued he was entitled to review of the transcripts and should not be required to rely on the representations of the adverse party. The state argued that its interest in safeguarding the details of other investigations contained on the hard drive outweighed the defendant s request to have access to the hard drive. The trial court agreed with the state, but the appellate court reversed that holding, requiring the state to allow the defendant a reasonable means of verifying the accuracy and completeness of the transcript to meet the requirements of the right to a fair trial and the right of an accused to confront the evidence against him. The court suggested the trial court conduct an in camera review to verify the transcript. Kasten v. Doral Dental USA, LLC, 2007 WL (Wis. June 22, 2007). In a suit by a nonmanaging member of a limited liability company seeking to review company records, the district court held was neither a record nor a company document. The district court determined that was just a communication like a telephone call, not a document or record. The plaintiff appealed this distinction, and the Wisconsin Supreme Court reversed. Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL (S.D.Ohio June 12, 2007). In this case, the plaintiff requested the court enter a discovery order, allowing its computer forensic expert to search the defendant s computer systems, network servers, databases and backup tapes for the last nine years. The plaintiff also sought to compel the re-production of ESI previously produced in hard copy form and the production of deleted documents. The defendant argued the request for a forensic examination was not authorized as a matter of course by the Fed. R. Civ. P. amendments in 2006 and that its production was proper since the plaintiff's requests made no such production format specification. The defendant further argued the deleted information sought by the plaintiff 16

17 was inaccessible and not relevant. The court found the plaintiff s request for an intrusive examination of its opponent's computer systems was based on mere suspicion that the defendant may be withholding discoverable information and denied the request. On the production format and request for deleted documents discovery issues, the court ordered the parties to further meet and confer. Calyon v. Mizuho Securities USA, Inc., 2007 WL (S.D.N.Y. May 19, 2007). In a suit alleging violation of the Computer Fraud and Abuse Act, breach of fiduciary duty, unfair competition, inter alia, the plaintiff motioned the court to compel the defendants to produce mirror images of the hard drives of their personal computers and other computer storage devices to the plaintiff s computer forensic expert for inspection. The plaintiff alleged the defendants used and small computer storage devices to remove vast quantities of the plaintiff s confidential and proprietary data. While the defendants agreed to preserve the hard drives by creating mirror images, the parties disagreed as to who should inspect the mirror images. The plaintiff argued their expert should have complete access to the images, and the defendants argued that granting the plaintiff s expert unfettered access would impermissibly invade the privacy rights of the defendants and their non-party family members who also used the computers. The defendants proposed their own expert should inspect the mirror images using search terms provided by the plaintiff, or that the search be performed by an independent third-party expert. The court referred to the committee notes of Fed. R. Civ.P. 34(a), which states that a party is not entitled to a routine right of direct access to a party s electronic information system, although such access might be justified in some circumstances. The court held the plaintiff failed to show how its direct access was justified under these circumstances. As the defendants expert was fully capable of performing the search, as well as working with the plaintiff s attorney, the court found no reason to introduce an additional layer of expertise by requiring an independent expert. The court ordered the defendants to preserve the mirror images in question and to make their expert accessible for consultation with the plaintiffs counsel and expert on an on-going basis. O Bar v. Lowe s Home Centers, Inc., 2007 WL (W.D.N.C. May 2, 2007). In this class action suit, the plaintiffs alleged the defendant engaged in employment discrimination because they are not females or minorities. Having addressed whether the plaintiffs had standing to represent a class, the court determined the time ripe for the parties to begin precertification discovery. The plaintiffs claimed they were entitled to broad discovery of electronic documents, including , relating to all employees, in all positions, in every store owned by the defendant. The defendant disagreed with this contention. The court held that the plaintiffs could not obtain discovery for every person employed by the defendant, and limited the discovery to managers and officers at the regional, district and national level. The court noted that although the precertification discovery was limited, it was still very broad and the court was in no way condoning or encouraging broad, unduly burdensome, or irrelevant discovery requests. The court instructed the parties to construct a Rule 26(f) discovery plan. Anticipating the potential conflicts of discovering electronically stored information (ESI), the court ordered the parties to follow the Suggested Protocol for Discovery of Electronically Stored Information as set forth by the United States District Court for the District of Maryland. The court noted that although these guidelines provide a comprehensive list of ESI discovery issues, it was not meant to be an inflexible list. Moreover, the court set forth an extensive list of issues to be addressed by the parties in their joint discovery plan. Gragg v. Int l Mgmt. Group (UK), Inc., 2007 WL (N.D.N.Y. Apr. 5, 2007). In an action initially centering on various breach of contract and related claims, the magistrate judge found the defendant s disclosure of four privileged s to plaintiff s counsel was inadvertent and did not provide a basis for waiving attorney-client privilege. The s in question were compiled along 17

18 with approximately 200 other s by an assistant in the defendant s in-house legal department and produced on CD-ROM. Neither outside nor in-house counsel reviewed the CD-ROM for privileged material before it was sent to the plaintiff. After an appeal by the plaintiff, the magistrate s discovery order was reversed and remanded for additional consideration. In the interim, the plaintiff supplemented his original complaint with several federal RICO related claims. Characterizing the bulk of the claims as matters of federal question jurisdiction, the magistrate judge held that federal law governed any privilege determinations in the suit. Weighing factors outlined under federal law, the magistrate found the defendant had waived privilege as to the inadvertently produced s. In particular, he cited a lack of reasonable precautions to prevent disclosure and the relatively low volume of s produced in total as reasons for that conclusion. However, the magistrate declined to find that the scope of the waiver extended to the subject matter of the s, as the plaintiff urged, and held that the waiver only extended to the produced materials. Koninklijke Philips Elec. N.V. v. KXD Tech., Inc., 2007 WL (D. Nev. Mar. 20, 2007). In a discovery dispute, the plaintiff filed an emergency motion with the court to clarify its discovery order with respect to the defendants' production of documents. The plaintiff anticipated less than adequate discovery responses from the defendants in responding to the court s order. The plaintiff also expressed concern that the defendants not be permitted to simply produce an unorganized body of electronic or paper records which the plaintiff would then be required to search through to locate documents responsive to particular requests. The defendants claimed that they did not have to produce the electronic data because during the plaintiff s original seizure of documents, several hard drives and servers belonging to the defendants were damaged and many documents were lost. The court did not find the defendants arguments credible; instead, the court noted that the defendants had not produced any evidence to show that the hard drives were damaged and that no information could be gleaned from the drives. The court further cautioned that it could order a computer forensics examination of the alleged damaged drives to determine if the defendants were truthful and to establish if any discoverable information was retrievable. Furthermore, the court warned that the costs of the examination and sanctions could be imposed on either party, depending on what the investigation revealed. Keystone Fruit Mktg., Inc. v. Brownfield, 2007 WL (E.D. Wash. Mar. 14, 2007). In a misappropriation of trade secrets case, the plaintiff alleged that one of its former employees opened and used a key document on her laptop after being fired from the plaintiff s company. The employee was then hired by the defendant who is a competitor in the field. The fired employee stated that she merely opened up the document and viewed it and argued that it was only speculation that the document was given to or used with the defendant s business. She also claimed that any documents belonging to the plaintiff were destroyed. However, the plaintiff conducted a computer forensics analysis on the hard drive of the employee s laptop and home and work computers. The analysis showed that the employee retained the plaintiff s data and files on her home computer and that some of those files also existed in her account and on the computers at the defendant s company. This evidence was contrary to the employee s testimony that she destroyed all of plaintiff s data and did not use the plaintiff s computer data in her new employment. Based on these facts, the court allowed the plaintiff to amend its complaint to supplement claims against the defendant. Gibson v. Ford Motor Co., 2007 WL (N.D. Ga. Jan. 4, 2007). In a product liability case, the plaintiff motioned the court to compel the defendant to produce a copy of its litigation hold notice as part of discovery. The litigation hold notice had a list of the documents the defendant wanted its employees to preserve for the pending litigation. The court ordered the document did not have to be produced to the plaintiff since it was closely related to attorney-work product material. The court 18

19 noted that litigation holds are often over inclusive and the documents on the notice often do not bear any relevance to the actual litigation. The court also cautioned that compelled production of this notice would encourage other companies from not issuing litigation hold notices under fear of possible disclosure and adverse consequences. Bank of Amer. Corp. v. SR Int l Bus. Ins. Co., 2006 WL (N.C. Super. Nov. 1, 2006). The defendants sought deleted s from 400 backup tapes of Marsh, Inc., a broker of the plaintiff and non-party to the litigation. Marsh previously produced over 50,000 documents for the litigation but the defendants argued all relevant s may not have been produced. Marsh argued, as a non-party, the defendant s request would impose an undue burden and expense. Marsh s expert from Kroll Ontrack stated such recovery and organization could cost as much as $1.4 million. The defendants argued Marsh may have only produced s responsive to the subpoena and none that related to the claims and defenses of the case. The court denied the defendants motion because such a low level of marginal utility does not justify imposing a heavy burden on a nonparty nonparties should not be penalized for having a backup system by making them produce inaccessible backup data without good cause. Additionally, the court found no evidence that Marsh had failed to produce responsive documents or that the requested s would show anything contrary to the s already produced. NOTE: The court listed this as the companion case to Analog Devices Inc. v. Michalski, 2006 WL (N.C. Super. Nov. 1, 2006), which was filed concurrently by the court. Analog Devices Inc. v. Michalski, 2006 WL (N.C. Super. Nov. 1, 2006). In a misappropriation of trade secrets matter, the defendant compelled the court to order the production of inaccessible s from over 400 back-up tapes held by the plaintiff. The plaintiff objected because the production would require an undue burden and cost and would not likely uncover any probative evidence. The court examined five factors using a straightforward application of North Carolina Rule 26. It also noted the Guidelines from the Conference of Chief Justices would provide the proper legal guidance for e-discovery issues. The court analyzed and balanced the following factors: (1) the burden and expense of production; (2) the needs of the case; (3) the amount in controversy; (4) any limitations on the parties' resources; and (5) the importance of the issues at stake. The court found the potential for discovery of probative evidence was too great to deny Defendants motion and the evidence central to the defendants case may be uncovered by the inquiry. However, the court noted the discovery costs were unknown and reserved the right to re-examine any cost-shifting issues until the final costs were determined by the plaintiff. The court required the parties to equally split the costs of restoration. NOTE: This case is the companion case to Bank of Amer. Corp. v. SR Int l Bus. Ins. Co., 2006 WL (N.C. Super. Nov. 1, 2006), which the court filed concurrently. Wyeth v. Impax Lab. Inc., 2006 WL (D. Del. Oct. 26, 2006). In a patent infringement claim, the defendant filed a motion to compel electronic documents from the plaintiff in their native file format with complete metadata instead of in the already produced TIFF format. The defendant argued it was entitled to an entire electronic database of documents in its natural state, but the plaintiff argued there was no particular need for the native files. Agreeing with the plaintiff, the court found the parties did not agree to produce native files at the pre-discovery conference. The court also noted the defendant could not show a need for the native file documents. The court used Delaware s Default Standard for Electronic Discovery as authority and stated if parties cannot agree to a file format before discovery occurs, imaged files shall be the default format. The plaintiff also argued in favor of shifting half of the discovery costs to the defendant, which included imaging a large amount of documents for a litigation database. The court denied the cost-shifting claim because the defendant is not the only party benefiting [sic] from the organization of these 19

20 documents into the database. It held the plaintiff was also a beneficiary of its imaged files and it was not equitable to force the defendant to pay for the electronic organization of the opposing party s database. U.S. v. Ziegler, 456 F.3d 1138 (9th Cir. 2006). In an appeal from Montana district court, defendant claimed that child pornography and other information found on his workplace computer was protected as private information under the 4th Amendment. Plaintiff argued that a workplace computer is much like a locked desk drawer in an office and that a similar expectation of privacy should follow. However, the government argued that no employee can possibly have an expectation of privacy when the computer and internet access is paid for by the employer and when there is an entire company department dedicated to monitoring employee s internet use. The court held that the defendant could not have an objective expectation of privacy since his employer published and practiced a computer monitoring policy. The court noted that the defendant s personal password protection did not increase privacy expectations. Furthermore, the court stated that if the employer did not have a properly practiced policy in place, than an objective expectation of privacy may have existed for defendant. However, the court concluded [s]ocial norms suggest that employees are not entitled to privacy in the use of workplace computers. Del Campo v. Kennedy, 2006 WL (N.D. Cal. Sept. 8, 2006). During a claim under the Fair Debt Collection Practices Act, plaintiff filed a motion to prevent the destruction of documents and for an order requiring the parties to meet and confer to develop a document preservation plan. Defendant s company implemented a telephone recording system for one month where all calls were recorded and saved on digital media. Plaintiff claims that defendant circulated an internal memo during litigation advising employees to discard the recorded information in the normal course of business. Defendant argued that it wanted to be relieved from the "burden" of maintaining the digital evidence. However, the court refused to accept that maintaining digital evidence was a burden and ordered the defendant to preserve all electronic evidence. The court also ordered the parties to meet and confer to develop a preservation plan for electronic evidence. Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (2006). In a fraudulent transaction case, plaintiffs requested the court to order the production of s created almost two years prior to the alleged misconduct. Plaintiffs request required defendant to restore several backup tapes at a significant cost. Defendant argued that there was no obligation to restore any backup tapes because the tapes were meant only for disaster relief recovery and not for possible litigation. The court ruled that the defendant did not have to produce all responsive documents under plaintiffs requests as it was not entirely convinced that relevant and responsive documents would be found. However, the court held that defendant must perform an abbreviated search using a small sample of dates and search terms as supplied by the plaintiff. If the small search returns positive results, the plaintiff would be given leave to move the court for further electronic searches of the backup tapes. Furthermore, the court held that all costs, including attorney s fees would be paid by plaintiff after the defendant supplied proper affidavits and the court determined that such cost-shifting was warranted. Quon v. Arch Wireless Op., 445 F.Supp.2d 1116 (C.D. Cal. 2006). In a suit claiming 4th Amendment and federal statutory violations, the court determined that public employees who send text messages through department-issued pagers are protected by the 4th Amendment. The plaintiffs, police department employees, were issued pagers by their employer police department. The department had a loose policy of reviewing the text messages sent on these pagers; however, they did not uniformly implement the policy of reviewing employee s text messages. Plaintiffs argued that reviewing private text messages on department-issued pagers constituted an illegal search under the 4th Amendment and was an unreasonable invasion of privacy. The defendants 20

21 contended that the pagers were subject to a lesser expectation of privacy since they were owned by the department and department policy of reviewing the messages was adequate notice of a reduced expectation of privacy. The court held that the plaintiff had a reasonable expectation of privacy in his text messages sent to and from his city-issued pager since the police department s policy was to only review employee s text messages if they went over the monthly limit for text messages a policy that was used sparingly. Therefore, the plaintiff could not have reasonably expected his messages to be reviewed for content by his employer absent a policy stating otherwise. Furthermore, the court noted that the defendant s argument that the police department actually owned the pager used to transmit the protected messages was of no merit. Yancey v. Gen. Motors Corp., 2006 WL (N.D. Ohio July 20, 2006). In a disparate treatment employment claim, defendant requested that the court exclude certain employee s hard drives and s from the definition of documents as it related to a magistrate s discovery order. Additionally, the defendant argued that although production of the hard drives may generate some relevant documents, a large amount of data on the hard drive was irrelevant and likely to be barred under certain privileges. In refusing to exclude the terms from the definition of discovery documents, the court agreed with plaintiffs that the term encompassed computer hardware, software, s and computer forensics. Further, the court decided that to mitigate any possible disclosure of privileged information, the defendant must produce a confidentiality log of all possible documents from the hard drive. Lastly, since the removal of the hard drives is not an undue expense for a large corporation such as GM, the court ordered that they alone bear the costs of production to plaintiff. Eastman Kodak Co. v. Sony Corp., 2006 WL (W.D.N.Y. July 20, 2006). The district court affirmed the Special Master s Report and Recommendation requesting, inter alia, to deny the defendant s motion to compel the plaintiff to more specifically correlate information produced electronically via a computer server, CD-Rom and DVD s. Asserting deprivation of due process, the defendant argued the practical impossibility of finding relevant documents hidden in the electronic equivalent of 300 million pages. After performing searches on the contested server, the Special Master found the server appeared to be organized in a usable format. Although the court recognized substantial time, effort and expense would be required to sort through the produced documents, the court found this reasonable in light of the billions of dollars at issue in the case. Ruling the documents were accessible, had been produced in the form in which it is usually maintained, and that the plaintiff was in no better position to correlate the information to the defendant s discovery requests than was the defendant, the court denied the defendant s motion to compel. Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL (M.D. Fla. July 19, 2006). In this suit filed to enforce a patent infringement settlement agreement, the court granted the plaintiff s motion for Rule 37 sanctions against the defendant for failing to comply with the court s order to produce responsive documents. In seeking sanctions, the plaintiff argued the defendant s production efforts were sparse at best, having received only a limited number of financial documents and no . While admitting to only producing five s during the initial disclosure, the defendant maintained it had since provided the plaintiff with 2,000 pages of electronic documents from its system. The defendant argued the documents had been obtained after a detailed and exhaustive keyword search resulting in over 17,000 potentially relevant documents which had to be organized, compiled, reviewed, Bates stamped and converted into the appropriate format. However, the defendant failed to provide sworn affidavits supporting its assertion that the delay in production was necessary to avoid undue burden and expense. The court found the defendant s argument without substantial justification, and issued a 21

22 sanction in the amount of $1,500 against the defendant as a reminder for parties and their counsel to cooperate when conducting litigation. Williams v. Sprint/United Mgmt. Co., 2006 WL (D. Kan. July 1, 2006). The court conducted an in camera review of 65 documents inadvertently disclosed by the defendant to the plaintiffs. The court found the documents -- spreadsheets containing statistical information -- were created at the request of the defendant s attorneys for the purpose of obtaining legal advice, and were protected by attorney-client privilege. In reaching its conclusion, the court considered several s establishing the documents had been ed directly to the defendant s counsel. In ruling the privilege had not been waived by the defendant s inadvertent disclosure, the court analyzed five factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of discovery; (4) the extent of disclosure; and (5) the overriding issue of fairness. To prevent inadvertent disclosure, the defendant converted the documents into TIFF images, allowed attorneys to review them on a computer screen, and implemented document production software to label privileged documents for inclusion within the privilege log. Citing the Advisory Committee s comments to the proposed amendments to FRCP Rule 26(f), the court considered the added volume, expense and time required to sift through electronically stored information in determining that the defendant s efforts to prevent disclosure were reasonable. In addition, since the defendant had immediately taken steps to secure the return of the spreadsheets after learning the documents had been inadvertently disclosed, the court ruled the privilege not waived and ordered the documents be returned to the defendant. Peskoff v. Faber, 2006 WL (D.D.C. July 11, 2006). The court considered the plaintiff s motion to compel the defendant to produce additional s written by or addressed to the plaintiff while employed by the defendant. During discovery, the defendant presented the plaintiff with computer disks that the defendant asserted contained all [plaintiff s] electronic files, including documents stored on his computer hard drive, , and any other [plaintiff] electronic documents. However, the discovery production did not include two years worth of s received or authored by the plaintiff from 2001 through The plaintiff argued the defendant failed to adequately explain the missing s or detail the steps taken to search for the s in the defendant s computer system or archives. Countering, the defendant maintained no documents had been withheld, and if s were missing, they no longer existed. The defendant informed the court that it subleases space from a law firm and its electronic files were stored on the law firm s server. The court observed there were several possible locations where the missing s could be located, including the plaintiff s account at work, other employee accounts, on hard drives of company computers and on backup tapes of the law firm s server. The court ordered the defendant to provide a detailed affidavit specifying the nature of the search the defendant conducted in locating the responsive s. It further ruled the plaintiff would then have ten days to respond to the adequacy of the search described in the affidavit and at that point the court would consider whether additional searches were necessary. Trammell v. Anderson Coll., 2006 WL (D.S.C. July 17, 2006). In an employmenttermination dispute, the defendant moved to quash a subpoena issued to a computer consultant retained in anticipation of litigation. In turn, the plaintiff sought a motion to quash a subpoena requesting any and all electronic storage media including hard drives, zip drives, thumb drives, CD's, DVD's, etc. from and pertaining to any computer including desktop computers and/or laptops, used by [the plaintiff] from January 1, 2002 to the present. Before terminating the plaintiff, the defendant hired a computer consultant to analyze the plaintiff s hard drive to determine the authenticity of certain s. Following this, the defendant retained a computer forensics expert, Kroll Ontrack Inc., to create a forensic image of the hard drive, conduct a more thorough 22

23 investigation of the computer media, and store the hard drive with the defendant s law firm for preservation. Although the defendant withheld the computer consultant s records, the defendant provided the plaintiff with the more in-depth report by Kroll Ontrack, insisting the plaintiff conduct its own forensic analysis if unsatisfied with the investigation. Arguing it had maintained strict chain-ofcustody procedures, the defendant submitted affidavits stating there has been no change in the data or information on the hard drive from the time it was retrieved to the present. Finding the plaintiffs failed to show evidence that information on the hard drive had been altered, the court granted the defendant s motion to quash and ruled the plaintiffs had not met their burden in demonstrating substantial need for the computer consultant s analysis or showing they would suffer undue hardship in obtaining the relevant information through other means. The court continued by granting the plaintiff s motion to quash, noting a party cannot issue a subpoena to another party under Rule 45, but should have requested production of the plaintiff s personal computer pursuant to Rule 34. O'Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72, 79 (Cal. App. 6 Dist. 2006). In a case involving the online publication of a company s trade secrets, the defendants sought a protective order to enjoin discovery of documents identifying their confidential sources. Their motion was denied by the trial court. However, the appellate court, ruling on the rights of web publishers to resist the discovery of unpublished material, granted the protective order, citing federal and state law, and a constitutional privilege against the compulsory disclosure of confidential sources. Bob Barker Co., Inc. v. Ferguson Safety Prods., Inc., 2006 WL (N.D. Cal. Mar. 9, 2006). In an action brought under the Lanham Act, the plaintiff sought, inter alia, all financial software databases used in the operation of the defendants business. The defendants protested arguing the request was overbroad. Noting the defendants did not appear to have the requested software, the court observed the plaintiff s other requests were broad enough to encompass the requested data, regardless of whether it was maintained in a "financial software database." The court determined the defendants need not produce documents specific to the plaintiff s request but declared the defendants may not withhold any documents (including electronic documents) that are responsive to any other request simply because they were created by or exist in a financial database program. The court also denied the plaintiff s expert direct access to the database indicating the plaintiff could seek direct access upon a showing of why [direct access] is necessary, and by proposing a procedure containing adequate safeguards to protect [the defendants ] interests. In re ATM Fee Antitrust Litig., 2005 WL (N.D. Cal. Dec. 5, 2005). In addition to document production and admission requests, the plaintiffs sought interrogatories and 30(b)(6) depositions concerning document and electronic data storage and management issues. The defendant conceded that one of its wholly-owned subsidiaries, which was not a named party to the suit, would be the most likely source of this information. However, the defendant objected to providing the requested information and argued such a measure would be unduly burdensome and expensive. The defendants stated the plaintiffs should directly request the documents themselves by subpoenaing the subsidiary or by adding them as a party to the suit. Rejecting this claim, the court ordered the defendant to respond to the plaintiffs discovery requests on behalf of its subsidiaries, stating the defendant had access to and control over this information. The court further found the defendants failed to show responding to the request would be unduly burdensome. Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. 2005). On behalf of her minor daughter, the plaintiff sued her husband s employer after her husband used his work computer to send pictures 23

24 of the daughter to an Internet pornography site. Granting the employer s motion for summary judgment, the lower court determined the employer did not have a duty to monitor the employee's Internet activities. On appeal, the court reversed and declared the employer had a duty to use reasonable care to prevent the employee from accessing child pornography sites on his work computer. The appellate court noted the employer was on notice the employee was viewing child pornography and the employer had the capability to monitor the employee's activities on his work computer. In addressing potential privacy concerns, the appellate court determined the employee had no legitimate expectation of privacy that would prevent the employer from accessing the computer to determine if he was using it to view adult or child pornography. The court held that if the employer failed to exercise reasonable care by failing to terminate the employee or by failing to report his activities to law enforcement the employer could be liable to a third party for resulting harm. The court remanded the case for a summary judgment determination on the issues of causation and harm. Menke v. Broward County Sch. Bd., 916 So.2d 8 (Fla. Ct. App. 2005). Alleging a teacher exchanged sexually explicit s with students and made derogatory comments about school staff, a school board sought to compel production of all computers in the teacher s household. Additionally, the Board sought to have its own computer expert search the computers in the expert s laboratory for the alleged messages between the teacher and students. Objecting to the order, the teacher declared the production would violate his right against self-incrimination, his right of privacy, and would disclose privileged communications. An administrative law judge ordered production of the computers and sought to protect the teacher s right by allowing the teacher to have his own expert present at the inspection and by requiring the Board s expert not to retain, provide, or discuss with counsel for the Board the existence of any communications which might be deemed privileged. In quashing the order, the court declared it was overbroad and would allow an agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the computers [the teacher] has been ordered to produce, combing through every byte, every word, every sentence, every data fragment, and every document, including those that are privileged or that may be part of privileged communications, looking for 'any data' that may evidence communication between [the teacher] and his accusers." Wild v. Alster, 377 F.Supp.2d 186 (D.D.C. 2005). In a medical malpractice lawsuit, the plaintiff moved for a new trial after the jury found in favor of the defendant. The plaintiff alleged the court erroneously denied a request for an expert examination of the defendant s computer. In particular, the plaintiff sought to discover if certain dates, specifically the date photographs of her face were taken, could be retrieved from the defendant s hard drive. The original photographs were lost during a computer system conversion; however, the defendant was able to recover some of the photos with the assistance of a data recovery service. The recovered photos only displayed the dates on which the photos were imported into the new system and not the dates on which they were originally taken. Despite this, the plaintiff asserted the defendant s computer consultant testified in a deposition that the original dates were retrievable. In reviewing the deposition testimony, the court determined the expert actually stated it would be impossible to print any of the photographs with dates indicating when they were originally taken. In denying the motion for a new trial, the court concluded the plaintiff was not prejudiced by being prohibited from presenting the import date information to the jury and further stated that the court was well within its bounds to prevent further discovery of the computer system given the plaintiff s request was made a year and a half after the discovery period closed. Galvin v. Gillette Co., 19 Mass.L.Rptr. 380 (Mass. Super. 2005). The Secretary of the Commonwealth of Massachusetts sought compliance with a subpoena duces tecum served upon 24

25 the defendant in connection with a proposed merger agreement. The defendant contended that nothing remained to be litigated and that it complied properly with all outstanding requests from the Secretary. Inter alia, the Secretary sought an order requiring the defendant, at its own expense, to permit a vendor the opportunity to "search all , servers, archives, discs, back-up tapes, hard drives (of all computers of Gillette and Gillette personnel), and all back-up systems thereof, and all other data bases of Gillette necessary to investigate and accomplish retrieval, preservation and copying of the documents." In denying the Secretary s proposed order, the court noted several factors making the effort impossible to comply with, including the size of the defendant s organization, the volume of computerized information, the defendant s retention policy, and the effort required to conduct a privilege review. Hypertouch, Inc. v. Superior Court, 27 Cal. Rptr. 3d 839 (Cal. Ct. App. 2005). In a class action lawsuit relating to unsolicited advertisements sent to fax machines, the plaintiffs had sought discovery of a database containing the telephone numbers to which the defendants allegedly sent the advertisements. The defendants argued the database contained confidential customer information and was protected as a trade secret. Agreeing with the defendants, the court denied the plaintiff s motion to compel. Shortly after, the plaintiff learned the defendants destroyed a second database called the do not fax database which listed phone numbers from which the defendants had received requests to stop sending faxes. The plaintiff then moved for an order approving certified class, asserting the defendant should pay for identifying and noticing class members due to the defendant s destruction of the do not fax database, its refusal to disclose the telephone number database, and its financial resources. The court determined the defendants should bear notice costs if they either "unnecessarily complicated the problems of identifying and notifying the class" or "possess the ability to provide class notice easily and at relatively little cost." Thus, the appellate court determined the superior court could order the defendants to provide notice by telephone fax to the persons whose numbers are in the fax database if that can be done without disclosure of the database to [the] plaintiff, and would be relatively easy and less expensive than alternative forms of notice. Public Relations Soc y of Am., Inc. v. Road Runner High Speed Online, 2005 WL (N.Y. May 27, 2005). In connection with their intention to commence a defamation action against the sender of an alleged defamatory , the petitioners sought production of relevant documents pursuant to preaction disclosure rules. The sought after was in the custody and control of an internet service provider, the respondent in this case. After finding out about the motion, the individual who authored the sought to intervene in the proceeding, vacate the default judgment, and block the disclosure of the identifying documents. The court looked to a fivefactor disclosure evaluation test. The test weighed: (1) whether the claimant has shown a prima facie cause of actionable harm, (2) whether the discovery request was sufficiently specific as to be reasonable likely to lead to the identifying information, (3) whether there was an alternative means to obtain the information, (4) if the information sought was central and necessary to advance the claim, and (5) if the defendant had any reasonable expectation of privacy in the identifying information. Based on the test, the court determined disclosure was warranted and ordered the respondent to produce the identifying documents. BG Real Estate Servs., Inc. v. American Equity Ins. Co., 2005 WL (E.D. La. May 18, 2005). In an insurance dispute, the plaintiffs sought production of a computer hard drive. The defendants objected on the grounds that the request was overly broad and sought irrelevant information that was unlikely to lead to admissible evidence. Finding for the defendants, the court declined to order production of the entire drive. However, the court noted that Fed. R. Civ. P. 34(a) includes relevant materials contained on a computer hard drive in its definition of "other data 25

26 compilations." The court further stated that [i]f particular non-privileged items on the referenced computer hard drive are responsive to other requests for production as to which defendants' objections have not been sustained, those items must be translated, if necessary, by the respondent through detection devices into reasonably usable form." The court noted that the defendants could withhold materials it considered privileged and list them on a privilege logs for a possible later discoverability determination. Board of Managers of the Atrium Condo. v. West 79th St. Corp., 17 A.D.3d 108 (N.Y. App. Div. 2005). In a property ownership dispute, the defendant claimed the plaintiff failed to timely serve a reply to the defendant s counterclaims. The plaintiff claimed to believe the matter was being held in abeyance pending ongoing extensive negotiations. Noting the plaintiff s late reply did not show a demonstrable pattern of willful delay, the court denied the defendant s request for electronic discovery of the plaintiff s attorney s computers. Burrell v. Anderson, 353 F.Supp.2d 55 (D.Me. 2005). In a case involving a domestic abuse investigation, the plaintiff claimed employees of the district attorney s office, police department, and the county violated his civil rights. The plaintiff filed a motion for spoliation sanctions, declaring several of the defendants failed to preserve voic s left by the plaintiff. The plaintiff argued the defendants should have known the voic s would be helpful in proving his case. In response, the defendants filed a motion for summary judgment. The court declared the plaintiff s argument merit[ed] little discussion and rejected the plaintiff s contention that any of the defendants had a duty to keep recordings of his voic messages in order to preserve evidence favorable to [the plaintiff] in this civil litigation. The court denied the motion for sanctions and granted summary judgment in favor of the defendants, finding no genuine dispute of material fact. Beck v. Shelton, 593 S.E.2d 195 (Va. Sup. Ct. 2004). The court held an exchange between city council members was not a "meeting" subject to the provisions of a state Freedom of Information Act (FOIA). The court equated communication to other forms of communication not falling within the definition of a prohibited FOIA meeting (i.e. traditional letters sent by ordinary mail, courier or facsimile). However, the court distinguished from communication taking place in "chat rooms" or by "instant messaging." The court inferred the virtually simultaneous nature of instant messaging may place it unlike within the prohibited meeting FOIA definition. United States v. Conte, 2004 WL (N.D.Cal. Dec. 28, 2004). In an investigation relating to suspicions that the defendants supplied athletes with illegal performance-enhancing drugs, a magistrate judge issued search warrants permitting the government to search Yahoo! and AOL e- mail accounts allegedly used by the defendants and a drug company. The defendants challenged these warrants and a warrant permitting seizure of correspondence with athletes, claiming the warrants were stale, overbroad and lacked probable cause. Concluding it was likely the accounts would contain s relating to the distribution of the drugs, the court found probable cause existed for issuing the warrants. The court also declared the warrants were not stale since the accounts were used recently. In addition, the court found the warrants were not overbroad because they did not permit the seizure of all s in the accounts. Rather, the warrants only permitted seizure of s that were restricted to financial matters and performance-enhancing drugs. F&M Expressions Unlimited, Inc. v. O'Connell, No. C (Sup. Ct. N.J. Sept. 10, 2004). In a case involving allegations of stolen company confidential information, the court granted an order allowing the plaintiff access to the defendants business and personal computers for mirror imaging. The plaintiff s expert accessed the defendant s computers and discovered damaging e- mails between the defendants and third parties. Based on this evidence, the plaintiff sought access 26

27 to the third parties personal home computers. The plaintiff had already examined the third parties business accounts, and the third parties had already searched their home computers for relevant s. The defendants objected to the request on the grounds of invasion of privacy and redundancy. The plaintiff declared it could limit its investigation by using a keyword search or by preparing a list of relevant documents and submitting them for the court to review in camera. The court refused to allow the plaintiff access to the computers because such access would be an invasion of privacy. However, the court indicated the plaintiff could attempt to retrieve the information through more specific discovery requests. Tempco Elec. Heater Corp. v. Temperature Eng g Co., 2004 WL (N.D.Ill. Jun. 3, 2004), vacated and rev d in part, Case No. 02 C 3572 (Jun. 29, 2004). In response to the plaintiff s claims of trademark infringement, breach of contract, and misappropriation of trade secrets, the defendant moved for partial summary judgment arguing that the plaintiff presented no evidence to support its claims. In support of its motion, the defendant submitted findings by a computer company, who inspected the defendant s computers and determined that no remnants of the plaintiff s confidential database existed on the defendant s computers. Arguing that the court should deny the summary judgment motion, the plaintiff declared that the computer company had performed a minimal inspection and that a more complete computer forensic investigation might have revealed evidence of the database. The court granted the defendant s partial summary judgment motion declaring that the plaintiff has the burden of proof, and therefore the responsibility to conduct a thorough investigation. [The plaintiff] cannot simply sit back and complain about the inadequacy and/or bias of [the defendant s] inspection efforts. The plaintiff appealed this decision claiming testimony from one of the defendant s employees revealed the defendant did not remove all copies of a computer program at issue from its computers as it claimed it did. Finding this established enough evidence to overcome summary judgment, the court vacated and reversed its original summary judgment finding. Bethea v. Comcast, 218 F.R.D. 328 (D.D.C. 2003). Former employee sought to compel the defendant to allow her to inspect their computer systems to determine whether the defendant possessed any additional documents that had not yet been produced in discovery. The defendant argued that the plaintiff should not be allowed to inspect its computers because the defendant had already produced all unprivileged documents in response to the plaintiff s discovery requests. Additionally, the defendant claimed that the plaintiff did not show that relevant material existed on the computer systems or that the defendant was unlawfully withholding documents. Ruling in favor of the defendant, the court noted that the plaintiff did not show that the documents she sought actually existed or that the defendant unlawfully failed to produce them. The court further declared that mere suspicion that another party failed to respond to document requests was not enough to justify court-ordered inspection of the defendant s computer systems. Farmers Ins. Co. v. Peterson, 81 P.3d 659 (Okla. 2003). In a discovery dispute, the district court ordered the defendant to search insurance claim files for the years 2000, 2001, and 2002 and to produce documents containing complaints from Oklahoma insureds on medical payment claims. The defendant insurer claimed the request was unduly burdensome because to comply, it would have to manually examine 600,000 closed paper files and 3,300-3,400 electronic files. The defendant estimated the average examination time per file at 30 minutes. On appeal from the district court order, the Oklahoma Supreme Court noted that the expenditure of time and money to conduct the search in accordance with the plaintiff s request would be unduly burdensome on the defendant. However, the court was hesitant to excuse the defendant from meeting the plaintiff s discovery demands noting that the defendants unilateral decision on how it stores information cannot, by itself, be a sufficient reason for placing discoverable matter outside the scope of 27

28 discovery. The court ordered the defendant to use a statistical sampling technique to meet the trial court s muster for integrity of the process and protect both litigants from distortive effects to produce discovery. In re Ford Motor Company, 345 F.3d 1315 (11th Cir. 2003). The plaintiff brought claims against Ford Motor Company alleging that the seatbelt buckle of her automobile, which unlatched during an accident, was defectively designed. After serving several document requests, the plaintiff filed a motion to compel seeking direct access to Ford's electronic databases to conduct searches for claims related to unlatching seatbelt buckles. These databases recorded all customer contacts with Ford, as well as all records of dealers and personnel, among other things. The trial court granted the plaintiff s motion to compel. Ford appealed, filing petition for a writ of mandamus. The appellate court held that the plaintiff was not entitled to direct, unlimited access to Ford s computer databases, stating that without constraints, the lower court's order granted the plaintiff access to information that would not be discoverable without Ford first having had an opportunity to object. Theofel v. Farey Jones, 341 F.3d 978 (9th Cir. 2003), amended by, 359 F.3d 1066 (9th Cir. 2004), cert. denied, 125 S. Ct. 48 (2004). Seeking discovery, a party in a commercial litigation issued a third party subpoena on the opposing party's Internet Service Provider (ISP). Instead of limiting the scope of the subpoena to particular subject matters, custodians, or time periods, the subpoena sought all to or from the opposing party. The ISP substantially complied, but when the opposing party learned of the subpoena, it moved to quash. The court severely criticized the subpoenaing party for its overbroad subpoena and issued $9,000 in sanctions. The employees of the subpoenaed party then brought a new civil suit against the subpoenaing party and its attorney under the Stored Communications Act, the Wiretap Act and the Computer Fraud and Abuse Act. The trial court granted a motion to dismiss the new suit, finding that no claim was stated. The Ninth Circuit reversed and reinstated the civil suit, holding that an overbroad subpoena is not valid especially when directed against a third party that may not have the resources to oppose the subpoena. The ISP's consent by complying with the production was invalid since the subpoenaing party had at least constructive knowledge of the subpoena's invalidity and thus any consent was obtained deceptively and through mistake. First USA Bank v. PayPal, Inc., 76 Fed.Appx. 935 (Fed.Cir. 2003). In a patent infringement action, the plaintiff subpoenaed the defendant s former chief executive officer, specifically requesting the court to compel his deposition and to require him to produce his laptop computer for forensic inspection. The former-ceo had used the computer while employed by the defendant and subsequently purchased it from the defendant when he left its employ. Despite objection, the magistrate judge ordered the former-ceo to be available for deposition and approved a search protocol. The search protocol allowed electronic evidence consultants to create a forensic copy of the computer's hard drive, identify any potentially relevant documents, and, if such documents were found and identified, allow the former-ceo to create a privilege log. The district court affirmed the magistrate's order and former-ceo appealed. The appellate court dismissed the former-ceo s appeal of the lower court s non-final interlocutory discovery order. Star Tribune v. Minn. Twins Partnership, 659 N.W.2d 287 (Minn. Ct. App. 2003). In litigation between a sports facilities commission and a professional baseball team, three media companies brought a motion to intervene and modify a protective order, which protected all assertedly confidential material. The media companies sought access to discovery materials, including a CD- ROM containing 9,000 documents held by the commission. The appellate court denied the media companies request and determined the trial court was within its discretion in entering the protective order. The appellate court further concluded the protective order denied the media companies the right to access the CD-ROM pursuant to a state statute. 28

29 United States v. Bailey, 272 F. Supp.2d 822 (D.Neb. 2003). The FBI suspected that an employee within American Family Insurance was distributing child pornography using his company account. Pursuant to a subpoena, American Family Insurance accessed the contents of the defendant's account and reported to the FBI that pornographic images were found. Based on this information, the FBI was issued a warrant to search the defendant s office space and computer. The defendant moved to suppress evidence of child pornography located during the search of his work computer. The court held that the defendant did not have an expectation of privacy in the information stored on his work computer given his employer's practices, procedures, and regulation over the use of the computer property. Specifically, the company had a log-in notice that warned of possible monitoring or searching and required users to click "OK" to proceed. The employer also posted company computer-use policies on its intranet site and sent notification to all users reminding them to read the policy. Wright v. AmSouth Bancorp, 320 F.3d 1198 (11th Cir. 2003). In an age discrimination suit, the plaintiff sought discovery of computer disks and tapes containing all word processing files created, modified and/or accessed by five of the defendant s employees spanning a two and a half year period. The court denied the plaintiff s motion to compel because his request was overly broad and unduly burdensome and made no reasonable showing of relevance. Bryant v. Aventis Pharmaceuticals, Inc., 2002 WL (S.D. Ind. Oct. 21, 2002). The Indiana court mentioned without further comment that s were recovered from the plaintiff s computer after her termination, confirming the general discoverability of evidence. The court considered the content of these s in granting summary judgment in favor of the defendant. In re CI Host, Inc., 92 S.W.3d 514 (Tex. 2002). Customers brought a breach of contract class action against the company hosting their web services. During discovery, the trial court ordered the defendant to preserve and produce computer backup tapes containing potentially relevant evidence. The defendant objected that the request was overbroad, demanded confidential information, and was in violation of the federal Electronic Communications Privacy Act. The appellate court held that in light of the defendant s failure to produce evidence supporting its objections as required by Texas Rule of Civil Procedure 193.4(a), the trial court did not abuse its discretion in ordering the contents of the tapes to be produced. Southern Diagnostic Assoc. v. Bencosme, 833 So. 2d 801 (Fla. Dist. Ct. App. 2002). The appellate court quashed an order against Southern Diagnostic, a non-party in an insurance suit brought by Bencosme, compelling discovery of certain contents of its computer system. The appellate court held that that trial court's order was overly broad, setting no parameters or limitations on the inspection of Southern Diagnostic's computer system and make no account that the computer system contained confidential and privileged information. The appellate court directed the trial court to craft a narrowly tailored order that accomplishes the purposes of the discovery requests and provides for confidentiality. Collette v. St. Luke s Roosevelt Hospital, 2002 WL (S.D.N.Y. Sept. 26, 2002). The New York court mentioned without further comment that s were made available during discovery, confirming the general discoverability of evidence. MHC Investment Comp. v. Racom Corp., 209 F.R.D. 431 (S.D. Iowa 2002). The Iowa court mentioned without further comment that s were made available during discovery confirming the general discoverability of evidence. Rowe Entertainment, Inc. v. The William Morris Agency, 2002 WL (S.D.N.Y. May 9, 2002). Rules 26(b) and 34 for the Federal Rules of Civil Procedure instruct that computer-stored information is discoverable under the same rules that pertain to tangible, written materials. 29

30 Stallings-Daniel v. Northern Trust Co., 2002 WL (N.D. Ill. Mar. 12, 2002). In an employment discrimination action, the plaintiff moved for reconsideration of the court s denial of electronic discovery of the defendant s system. The court, in denying the plaintiff s motion for reconsideration, determined that the plaintiff presented no new information that justified an intrusive electronic investigation. Dikeman v. Stearns, 560 S.E.2d 115 (Ga. Ct. App. 2002). In a suit brought by a law firm regarding its client s unpaid legal invoices, the defendant requested, among other things, a full and complete copy of the law firm s computer hard drive that was used to generate documents pertaining to the defendant s case. Refusing to order the discovery, the court found the defendant s requests to be overbroad, oppressive, annoying. McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001). [E]conomic considerations have to be pertinent if the court is to remain faithful to its responsibility to prevent 'undue burden or expense'.... If the likelihood of finding something was the only criterion, there is a risk that someone will have to spend hundreds of thousands of dollars to produce a single . That is an awfully expensive needle to justify searching a haystack. Ex Parte Wal-mart, Inc., 809 So. 2d 818 (Ala. 2001). In a personal injury case, the plaintiff sought discovery of Wal-mart s electronic database containing customer incident reports and employee accident review forms. The appellate court held that discovery order should have been restricted to falling-merchandise incidents with geographic and temporal limits set forth by the trial court. White v. White, 781 A.2d 85 (N.J. Super. Ct. Ch. Div. 2001). In a divorce action, the husband filed a motion to suppress his that had been stored on the hard drive of the family computer. The court held that the wife did not unlawfully access stored electronic communications in violation of the New Jersey Wiretap Act and did not intrude on his seclusion by accessing those s. Having a legitimate reason for being in the files, plaintiff had a right to seize evidence she believed indicated her husband was being unfaithful.is rummaging through files in a computer hard drive any different than rummaging through files in an unlocked file cabinet Not really. Demelash v. Ross Stores, Inc., 20 P.3d 447 (Wash. Ct. App. 2001). In an action for a false shoplifting arrest, the court stated, A trial court must manage the discovery process in a fashion that promotes full disclosure of relevant information while at the same time protecting against harmful side effects. Consequently, a court may appropriately limit discovery to protect against requests that are unduly burdensome or expensive. The court limited the scope of to a computerized summary of the store s files. Milwaukee Police Assoc. v. Jones, 615 N.W.2d 190 (Wis. Ct. App. 2000). In considering the provisions of the state s open records laws, the court concluded that the city s production of an analog tape was insufficient when a digital version existed. The court stated, A potent open records law must remain open to technological advances so that its statutory terms remain true to the law's intent. Itzenson v. Hartford Life and Accident Ins. Co., 2000 WL (E.D. Pa. Oct. 10, 2000). It is difficult to believe that in the computer era that the defendant could not identify files and filter out information based on specific categories. In re Dow Corning Corp., 250 B.R. 298 (Bankr. E.D. Mich. 2000). Federal Government did not satisfy its obligation to make medical records stored in computer databases available to Debtor, where Government directed Debtor to warehouses around the world where the information was stored. Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440 (D. Or. 1999). The court held that plaintiffs are not entitled to unbridled access [of] defendant s computer system plaintiffs 30

31 should pursue other less burdensome alternatives, such as identifying the number of letters and their content. Caldera, Inc. v. Microsoft Corp., 72 F. Supp.2d 1295 (D. Utah 1999). A federal district court found that a series of intra-company s offered direct evidence that the corporation was actively trying to destroy a competitor. Playboy Enters., Inc. v. Welles, 60 F. Supp.2d 1050 (S.D. Cal. 1999). The court held that the defendant s hard drive was discoverable because it was likely that relevant information was stored on it. Production of such electronic information would not be unduly burdensome upon the defendant. Linnen v. A.H. Robins Co., 1999 WL (Mass. Super. June 16, 1999). A discovery request aimed at the production of records retained in some electronic form is no different in principle, from a request for documents contained in any office file cabinet. The court continued, To permit a corporation such as Wyeth to reap the business benefits of such [computer] technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results. Symantec Corp. v. McAfee Assoc., Inc., 1998 WL (N.D. Cal. Aug. 14, 1998). The plaintiff sought to obtain the entire source code for all of the defendant s products dating back to 1995, as well as copies of all hard drives which had access to the server from which the information was copied. The court found that production of this magnitude would be unduly burdensome to the defendant, both in terms of volume and in terms of the proprietary nature of the information sought. Storch v. IPCO Safety Prods. Co., 1997 WL (E.D. Pa. July 16, 1997). This Court finds that in this age of high-technology where much of our information is transmitted by computer and computer disks, it is not unreasonable for the defendant to produce the information on computer disk for the plaintiff. Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. Dist. Ct. App. 1996). The court ruled that the trial court s discovery order should be quashed because (1) unrestricted access to defendant s entire computer system was overly broad and would pose a threat to confidential records and (2) there was little evidence that the purged documents could be retrieved. Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996). The court denied the plaintiff s broad request for discovery of defendant s entire hard drive. The court explained that the costs, burdens, delays, and likelihood of discovering the evidence must be weighed against the importance of the requested evidence. The court held requesting party must show a particularized likelihood of discovering appropriate material. Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL (S.D.N.Y. Nov. 3, 1995). The law is clear that data in computerized form is discoverable even if paper hard copies of the information have been produced [T]oday it is black letter law that computerized data is discoverable if relevant. Murlas Living Trust v. Mobil Oil Corp., 1995 WL (N.D. Ill. Mar. 20, 1995). The court refused to require the defendant to undergo intrusive or burdensome discovery for its electronic files where the burden is not justified by the relevance of the evidence likely to be discovered. Crown Life Ins. Co. v. Craig, 995 F.2d 1376 (7th Cir. 1993). Computer data is discoverable under Federal Rule of Procedure 34. Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993), rev d in part on other grounds, 90 F.3d 553 (D.C. Cir. 1996). The district court held that government agencies who merely instructed employees to print out a paper version of any electronic communication had not reasonably discharged their preservation obligations under the Federal Records Act. The appellate court affirmed stating, [w]ithout the missing information, the paper print-outs--akin to traditional 31

32 memoranda with the "to" and "from" cut off and even the "received" stamp pruned away--are dismembered documents indeed. Aviles v. McKenzie, 1992 WL (N.D. Cal. Mar. 17, 1992). In an action involving claims of wrongful termination and employment discrimination, the plaintiff presented messages that demonstrated he was fired for whistleblowing about unsafe and illegal company practices. Lawyers Title Ins. Co. v. United States Fidelity & Guar. Co., 122 F.R.D. 567 (N.D. Cal. 1988). The court rejected, as broadly framed and intrusive, a request to inspect the responding party s entire computer system where it was a mere possibility that responding party might produce applicable documents. The court required a showing that this inspection would lead to evidence that had not already been produced. Santiago v. Miles, 121 F.R.D. 636 (W.D.N.Y. 1988). The court noted that [a] request for raw information in computer banks is proper and the information is obtainable under the discovery rules. Daewoo Elecs. Co. v. United States, 650 F. Supp (Ct. Int l Trade 1986), rev d on other grounds 6 F.3d 1511 (Fed. Cir. 1993). The court rejected the government s narrow discovery position, stating that disclosure orders should be construed liberally and should not be impeded by technical objections. The court further explained, [I]t would be a dangerous development in the law if new techniques for easing the use of information become a hindrance to discovery of disclosure in litigation. Bills v. Kennecott Corp., 108 F.R.D. 459 (C.D. Utah 1985). [C]ertain propositions will be applicable in virtually all cases, namely, that information stored in computers should be as freely discoverable as information not stored in computers, so parties requesting discovery should not be prejudiced thereby; and the party responding is usually in the best and most economical position to call up its own computer stored data. Procedure Youkers v. State, 2013 WL (Tex. App. Dallas May 15, 2013). In this appeal of an assault conviction, the defendant argued that a Facebook friendship and Facebook communications between the trial judge and the victim s father resulted in impermissible bias which warranted a new trial. The trial judge testified that he and the father were Facebook friends because they ran for office at the same time, but that this was the extent of their relationship. Prior to the defendant s original plea, the father reached out to the judge seeking leniency for the defendant via Facebook message. The judge responded online, advising him that the communication violated the ex parte communication rule, and that he should stop reading the message. The judge then disclosed the incident to the lawyers, contacted the judicial conduct commission, and placed a copy of the communications in the court s file in full compliance with the Texas Committee on Judicial Ethics recommended process for treating an ex parte communication. The reviewing court drew upon ABA Op. 462 and stated that merely designating someone as a friend on Facebook does not show the degree or intensity of a judge s relationship with a person. The court quickly dismissed the defendant s claim that actual bias existed because they failed to submit evidence that showed something more than a mere Facebook friendship. Similarly, the court rejected the defendant s claim that there was an appearance of bias because a reasonable person would likely conclude that the Facebook communications did not cause the judge to abandon his judicial role of impartiality. 32

33 Da Silva Moore v. Publicis Groupe, (2d Cir. Apr. 10, 2013). In an order of notable brevity, Judge Jane A. Restani denied the petitioners request for the recusal of Judge Andrew J. Peck, stating simply that: Petitioners have not clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion in denying their district court recusal motion or that the district court erred in overruling their objection to that decision. This order severed the plaintiffs recusal allegations which clouded the substantive holdings in this groundbreaking technology-assisted review case. Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., 2013 WL (D.N.J. Feb. 11, 2013). In this case, the defendant motioned for a protective order with regard to sixty-seven allegedly overbroad search terms added to the plaintiff s discovery requests because the defendant had already produced over 8,000 pages of responsive documents. Alternatively, the defendant moved the court to order cost-shifting should search on the sixty-seven terms be conducted because the scope of the information sought was unduly burdensome and unreasonable. The court found no good cause for a protective order and denied the defendant s motion, noting that the defendant present[ed] no compelling factual basis or sufficient legal background to support its motion, and further failed to comply with Fed. R. Civ. P. 26 by certifying good faith attempts to meet with the plaintiff and resolve the dispute. Moving to cost-shifting, the court referred to the basic presumption that the producing party pays unless the proponent for cost-shifting sufficiently proves an undue burden. Reviewing the defendant s argument in light of the seven Zubulake factors, the court first found that the information requested was not deleted or stored on backup tapes and was thus accessible and not overly burdensome. Additionally, the court found that the terms requested were sufficiently tailored to a restricted time period relevant to the litigation, further suggesting that the requests were not overly duplicative or burdensome. Finally, the court weighed the estimated $16,000 to conduct the searches against the $41 million amount in controversy and concluded that the requests were not overly burdensome. Ultimately, the court found that the Zubulake factors favored the plaintiff, and denied the defendant s request for cost-shifting. Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., 2012 WL (S.D.N.Y. Nov. 21, 2012). In this litigation related to misrepresentations and breach of contracts in several residential mortgage-backed securities, both parties sought to compel several types of discovery from the other. Notably, the parties disputed the adequacy of proposed search terms, but neither submitted expert affidavits suggesting the most efficient search protocol. Citing back to United States v. O Keefe, Magistrate Judge James C. Francis IV, noted that search terms were far too complex for judges or lawyers to evaluate, and further concluded [a] court should be hesitant to resolve issues that demand technical expertise. Thus, the court left the parties with three options: (1) cooperate and agree on appropriate search protocols; (2) supplement and refine their motions to compel with expert testimony; or (3) appoint a neutral consultant to appoint a search protocol. Thus, Judge Francis denied this particular portion of the motion to compel, and left it to the parties to decide how to proceed, further inviting the parties to seek my assistance should they have difficulty. Eagle v. Moran et al., Civil Action No (E.D.Pa. Oct. 4, 2012). In this social media dispute, the plaintiff attempted to establish violations of the Federal Computer Fraud and Abuse Act ( CFAA ) and the Federal Lanham Act. After the plaintiff was involuntarily terminated from her position as CEO with her former employer, the employer used her password to change her LinkedIn profile to that of the new CEO as well as the password associated with the account. When individuals searched for the plaintiff, it resulted in the display of the incoming CEO s name, photograph, and new position. Notably, the employer followed internal policies of asserting ownership over former employees accounts. While the employer mine[d] information and incoming traffic from former employee accounts, it took steps to avoid identity theft. Additionally, 33

34 when the plaintiff set up her LinkedIn account, she gave another employee her password according to internal policies. Under the CFAA, the court ruled that the plaintiff failed to establish a claim as a matter of law because loss of business opportunities is not enough to meet the required showing of actual loss (usually proven by showing damage to a computer). Under the Lanham Act, the plaintiff is required to show that the defendant created a likelihood of confusion from using a mark owned by the plaintiff. The court disposed of the claim on the likelihood of confusion prong because any confusion that occurred was not about the plaintiff s affiliation, connection or association with the new CEO or employer at most it created a mere diversion. The court did not rule on several state causes of action set for trial. Da Silva Moore, et al. v. Publicis Groupe SA and MSLGroup, No. 11-Cv-1279-ALC-AJP (S.D.N.Y. Nov. 8, 2012). In the most recent development in this employment discrimination case, Judge Carter addressed the plaintiffs request for an order requiring recusal of Magistrate Judge Peck, the author behind the first known opinion accepting the use of TAR. The court noted that the proper inquiry is whether an objective, disinterested observer would entertain significant doubt that justice would be done absent recusal. Reasoning that TAR does not inherently favor one party and that mere disagreement with a ruling does not warrant disqualification, the court denied the plaintiffs motion for recusal. EORHB, Inc., et al. v. HOA Holdings, LLC, C.A. No VCL (Del. Ch. Oct. 15, 2012). In this indemnity dispute arising out of the sale of the Hooters restaurant chain, the court ordered sua sponte that the parties use technology assisted review (TAR), absent a showing of cause why TAR is not the way to go. The court noted that indemnity claims can generate a huge amount of documents, making this an ideal non-expedited case for the use of TAR. Instead of burning lots of hours on human review, the parties were asked to agree upon a common e-discovery vendorto be used in future discovery. The court noted that if the parties are unable to agree on a single provider, it will pick a vendor from a list of submitted options. This is the first time a court has ordered the use of TAR on its own initiative. Kleen Products LLC, et al. v. Packaging Corp. of Am., et al., 1:10-cv (N.D. Ill. Sept ). The predictive coding dispute in Kleen Products has been tabled until next year, but discovery motions have taken center stage in this case. In light of recent interrogatories and document requests, Judge Nan Nolan issued an order, citing The Sedona Conference Cooperation Proclamation, which reminds the parties that while they have a duty to advocate for their clients, they also have a duty to conduct the discovery process in a non-combative and candid manner. Specifically, Judge Nolan called out the plaintiffs for requesting an interrogatory regarding the defendant s organizational structure and its 400 employees that they previously agreed not to request, which not only disregarded the spirit of cooperation, but also violated the proportionality doctrine of Fed. R. Civ. P. 26(b)(2)(C). Judge Nolan referred to the predictive coding dispute in this case as a positive example of how destructive motion practice was bypassed, and reminded the parties to conduct their discovery obligations in a collaborative manner, as they had previously done. In confirmation that courts in this era have raised the bar on what behavior will be deemed appropriate in the ediscovery process, Judge Nolan ruled for the defendant and quashed the plaintiffs interrogatory. Kleen Products LLC, et al. v. Packaging Corp. of Am., et al., 1:10-cv (N.D. Ill. Aug. 21, 2012). The loose ends left by two evidentiary hearings and a number of status conferences held throughout the first half of 2012 have since been severed by party stipulation. In evidentiary conferences in February and March, the plaintiffs urged Judge Nolan to require the defendants to replace their Boolean search methodology with TAR for increased accuracy. The defendants countered by eliciting testimony that the search strategy used for initial responses was defensible 34

35 as it was honed by input by both parties and subject to quality control (QC) testing. Moreover, the search strategy had been used throughout the length of the case to produce over three million pages of documents. After giving the parties a B plus in cooperation, on March 28 th, Nolan expressed her desire to find a result that would leverage the defendants substantial production, honor the responding party s suitable position for delivering an appropriate production, and accommodate for continued party cooperation. The result came by way of party agreement where plaintiffs withdr[ew] their demand that defendants apply [TAR] to documents produced before October 1, Notably, however, the parties are expected to meet and confer after October 1, 2013 regarding the appropriate search methodology for future collections. In re Actos (Pioglitazone) Products Liability Litigation, 6:11-md-2299 (W.D. La. July 27, 2012). In the latest case leveraging the use of technology-assisted review (TAR), District Judge Rebecca Doherty issued comprehensive instructions, stating that the parties agree to meet and confer regarding the use of advanced analytics as a document identification mechanism for the review and production of... data. The parties will meet and confer to select four key custodians whose will be used to create an initial sample set, after which three experts will train the TAR system to score every document based on relevance. To quell the fears of TAR skeptics, the court provided that both parties will collaborate to train the system, and after the TAR process is completed, the documents will not only be randomly sampled for quality control, but the defendants may also manually review documents for relevance, confidentiality, and privilege. Given the court s comprehensive instructions to complete the TAR process from start to finish, this order is a momentous step for the defensibility of TAR. Nat l Day Laborer Org. Network et al. v. U.S. Immigration and Customs Enforcement Agency, 2012 WL (S.D.N.Y. July 13, 2012). In this Freedom of Information Act (FOIA) litigation, the plaintiffs sought to obtain information from various federal agencies about a government program that uses an already-existing federal information-sharing partnership between [U.S. Immigrations and Customs Enforcement] and the Federal Bureau of Investigation (FBI)... to identify criminal aliens without imposing new or additional requirements on state and local law enforcement. Judge Scheindlin first addressed the issue of whether or not parties should be able to trust self-collection to government custodians. She provided two answers: first, the government will not be able to establish the adequacy of its FOIA searches if it does not record and report the search terms that it used, how it combined them, and whether it searched the full text of documents, and second, simple keyword searching is often not enough. Judge Scheindlin moved on to address best practices in conducting searches, specifically as related to technologyassisted review, and noted that the literature makes it abundantly clear that unsupported assertions of a reasonable self-search cannot be supported by a court. Da Silva Moore v. Publicis Groupe, No. 11 Civ.1279 (ALC) (AJP) (S.D.N.Y. April 26, 2012). Following U.S. Magistrate Judge Andrew Peck s February 24 opinion and order finding predictive coding appropriate for this ongoing employment discrimination litigation, the plaintiffs objected, arguing the order was contrary to law and asked the District Court to overturn it. Specifically, the plaintiffs argued that Peck adopted the defendants version of the ESI protocol based on an insufficient record, improperly relied on outside documentary evidence, and failed to hold an evidentiary hearing to obtain expert testimony regarding the reliability and accuracy of predictive coding. Ruling on these objections, U.S. District Court Judge Andrew L. Carter, Jr. fully upheld Peck s order and opinion, finding Peck s ruling was well reasoned in consideration of the potential advantages and weaknesses of predictive coding. The court found the lack of an evidentiary 35

36 hearing was insignificant, reasoning that Peck was in the best position to determine if a later hearing was necessary should the parties continue to dispute the effectiveness of the technology. Finally, the court found the plaintiffs arguments regarding the efficacy of the predictive coding too speculative and echoed Judge Peck s earlier sentiments, noting that there simply is no review tool that guarantees perfection. Global Aerospace, Inc. v. Landow Aviation, L.P., No. CL (Vir. Cir. Ct. April 23, 2012). In this state-level consolidated case arising out of the collapse of three hangars during a snowstorm at Dulles airport, the defendants filed a motion for a protective order approving the use of predictive coding in processing and producing their own ESI. In their memorandum supporting the order, the defendants claimed they had over 250 gigabytes of reviewable information, which they estimated would cost over two million dollars for the 20,000 hours needed to manually review all of the data. The defendants also included U.S. Magistrate Judge Andrew Peck s February 24 order in Da Silva Moore v. Publicis Groupe approving predictive coding as an exhibit to support their motion. In a one-paragraph order written partially by hand, the Loudon County Circuit Judge granted the motion, allowing the defendants to use predictive coding subject to any objections the plaintiffs might raise following production. Da Silva Moore, et. al., v. Publicis Groupe & MSL Group, 2012 WL (S.D.N.Y. Feb. 24, 2012). In this employment discrimination case, the court took initial steps to explore the defensibility of predictive coding a computer-assisted review process by which a system of ESI is trained through multiple search term iterations to code documents with various levels of relevance. As an illustration of progress in litigation technology, the issue in this ongoing case is not whether predictive coding should be used, but rather how it should be used. At a status conference in early February 2012, the parties disagreed about various aspects of the methodology by which they would conduct the predictive coding of a large amount of ESI. For example, in an effort to retain relevant ESI, one of the plaintiffs main concerns was about how the system would determine that a document is irrelevant. In response to the various concerns of the parties, and as discussed in the order, the court reminded them that computer-assisted review "works better than most of the alternatives, if not all of the [present] alternatives. So the idea is not to make this perfect, it's not going to be perfect. The idea is to make it significantly better than the alternatives without nearly as much cost." Notably, the court found predictive coding appropriate for this matter, but concluded that the opinion was not a blanket endorsement any particular technology. The court further commented, What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in largedata-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the first or guinea pig for judicial acceptance of computer-assisted review. Wood v. Town of Warsaw, 2011 WL (E.D.N.C. Dec. 22, 2011). In this employment discrimination litigation, the defendant sought to modify a Fed.R.Civ.P. 45 subpoena seeking inspection of a non-party former supervisor s personal hard drive. Specifically, the defendant argued that the subpoena was overbroad, unduly burdensome and not calculated to lead to the discovery of admissible evidence. Before laying out its analysis, the court noted the standard for 36

37 quashing a Rule 45 subpoena, requiring consideration of relevance, the requesting party s need, and the potential hardships suffered by the party subject to the subpoena. Addressing the defendant s objections, the court found that the non-party s connection to the plaintiff offered the possibility of discovering some relevant evidence on his personal hard drive, especially in an age where it is increasingly common for work to be conducted outside the office through the use of personal electronic devices. Furthermore, the court found that the plaintiff s willingness to negotiate search terms and bear the cost of a search mitigated any undue burden. Based on these facts, the court concluded that the plaintiff was entitled to search the non-party s personal hard drive through an expert with the proposed search terms. In re National Ass n of Music Merchants, 2011 WL (S.D. Cal. Dec. 19, 2011). In this antitrust litigation, the plaintiffs moved for a nine-day extension of a previously-extended discovery deadline. Among other contentions, the plaintiffs argued that the defendants delays made it difficult to review late productions, identify deponents and complete ten depositions by the deadline. In response, the defendants argued that the plaintiffs were not diligent in pursuing discovery and failed to request their first deposition until two weeks before the deadline. The court granted the plaintiffs request for an extension of the discovery deadline, but disallowed further depositions without court permission. Next, the plaintiffs requested that each defendant run additional document searches containing abbreviations and acronyms for agreed-upon search terms, based upon the realization that the defendants search within relevant ESI did not capture the agreed-upon universe of responsive documents. Citing Fed.R.Civ.P. 26(b)(2)(B), the court emphasized the importance of cooperation in e-discovery, holding that the plaintiff squandered ample opportunities to meet and confer with defendants for additional discovery and that the burden to the defendants in complying with the request would outweigh its likely benefit. Acknowledging that the defendants already incurred significant discovery expenses, the court permitted further ESI searches if the plaintiff was willing to bear the cost. Suzlon Energy Ltd. v. Microsoft Corp., No (9th Cir. Oct. 3, 2011). In this civil fraud proceeding, the appellant objected to the district court s holding that denied production of s sent by an Indian citizen (a former employee of the appellant) via his Hotmail account. Previously the district court did grant production, but then reconsidered following Microsoft s objections. The district court disagreed with two of these objections, including that the documents sought must be discoverable in the foreign proceeding and that the subpoenas must be compliant with the Federal Rules of Civil Procedure, but agreed with the third objection that raised the Electronic Communications Privacy Act (ECPA). This ruling forms the basis of the plaintiff/appellant s objection. Upon appeal, the United States Court of Appeals for the Ninth Circuit analyzed the statutory framework of the ECPA and determined that any person as defined in 2510(13) of the ECPA extends protection to literally any person, including foreign citizens. Based on this plain text reading of the statute, the court upheld the district court s ruling finding the ECPA protects the domestic communications of noncitizens. Uhlig LLC v. Shirley, 2011 WL (D.S.C. July 13, 2011). In this discovery dispute, the plaintiff moved to impose sanctions and modify the forensic examination protocol for the defendants computers and peripheral devices. The parties had agreed to the protocol following numerous interventions by a magistrate judge; however, disputes continued to arise after forensic experts conducted searches and the plaintiffs sought to broaden the scope of discovery. Finding the plaintiff presented sufficient evidence that the broader scope of e-discovery was warranted, the court lifted the protocol s date restrictions and agreed that running hash value comparisons eliminated any need to limit search terms. Finally, the court declined to impose sanctions against 37

38 the defendants, who were simply opposing the plaintiffs' efforts to modify and extend a previously agreed upon discovery protocol. In re Google Inc. St. View Elec. Commc ns Litig., 2011 WL (N.D. Cal. June 29, 2011). In this class action litigation, the defendant moved to dismiss claims alleging violations of the federal Wiretap Act and various state wiretap statutes. Although the defendant admitted it had used "wireless sniffers" to intercept approximately 600 GB of information containing whole s, usernames, passwords and other private data in over 30 countries, it argued the communications were sent over unencrypted Wi-Fi networks and were thus readily accessible to the general public as excepted under the Wiretap Act. In response, the plaintiff argued the readily accessible exception applied only to radio communications. Turning to the legislative history to interpret the structure and intent of the Act, the court found the exception applied to all electronic communications rather than the more narrowly defined radio communications. But the court rejected Google's broader argument because Wi-Fi networks, like cellular communications, are designed to make intentional monitoring by third parties difficult. Absent the use of "rare packet sniffing software" a technology not possessed by the general public the court found that intercepting information over Wi-Fi networks would be extremely difficult, and thus falls outside the readily accessible exception. Accordingly, the court denied the motion to dismiss the federal wiretap allegations. Nat l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, Case 1:10-cv SAS (S.D.N.Y. June 17, 2011). In this Freedom of Information Act (FOIA) litigation, U.S. District Judge Scheindlin withdrew her landmark opinion that declared certain metadata to be "intrinsic" to the electronic record. Noting the parties had resolved their production format dispute, Judge Scheindlin declared that the earlier opinion "was not based on a full and developed record," and that it would be prudent to withdraw the decision "[i]n the interests of justice." Further, Judge Scheindlin declared that the withdrawn opinion "shall have no precedential value in this lawsuit or in any other lawsuit." United States v. Carell, 2011 WL (M.D. Tenn. May 26, 2011). In this False Claims Act litigation involving alleged improper Medicare billing, both parties requested additional discovery. The government asserted that during more than fourteen months of discovery, the defendants failed to produce a single electronic document and neglected to implement a litigation hold. Determining the government s timeline was too broad and the defendants too narrow, the court established a relevant timeline to be three years after the sale in question and two years after the defendants possessed an system, and ordered the defendants to conduct and certify an adequate search for responsive documents. Declining to rule on the defendants alleged failure to preserve absent a motion for sanctions, the court turned to the defendants request for 37 s (or strings) withheld by the government as work product and ordered the government to submit the s for an in camera review. United States v. Salyer, 2011 WL (E.D. Cal. Apr. 18, 2011). In this criminal antitrust and racketeering litigation, the defendant requested the creation of a web-based, common database to review the mass of documentation estimated at 1 to 2 terabytes collected by the government over a ten year investigation. Identifying numerous issues, including the size of information, resources and technological learning curve of defense counsel, need to review all discovery and the inability to agree, the court noted that when information "reaches the hundreds of gigabytes/terabytes stage, the government should consider whether everyone is better served if this information is placed in a common database" (emphasis in original). However, in consideration of the high costs involved, estimated to be between $350,000 and $2 million, and finding there was neither a clear benefit to the parties nor authority of the court to compel such a contribution, the 38

39 court declined to recommend delay of the motion schedule or compel creation of the database. Nonetheless, the court recommended the defendant file, ex parte, a Criminal Justice Act request for financial assistance. Wood v. Capital One Servs., LLC, 2011 WL (N.D.N.Y. Apr. 15, 2011). In this debt collection practices litigation, the plaintiff sought extensive discovery including broad searches and production of ESI. Objecting to the requests, the defendants claimed the likely volume to be generated by the searches would exceed 1,750,000 documents from the respective defendants projected to cost over $5 million to process, review and produce. Seeking protective orders, the defendants invoked the rule of proportionality set forth in the Fed.R.Civ.P. 26(b)(2)(C)(ii). While acknowledging that some of the documents in question were potentially relevant and that the defendants were large corporations with resources available to finance the discovery effort, the court determined the marginal relevance of the requests was far outweighed by the burden of responding and the exceedingly modest amount at stake (roughly $1,000). With one narrow exception, the court granted the defendants motions for a protective order and denied the plaintiff s motion absent an agreement the plaintiff would bear costs of the requested discovery. In re Facebook PPC Adver. Litig., 2011 WL (N.D. Cal. Apr. 6, 2011). In this breach of contract litigation, the plaintiffs sought resolution of various production disputes including a disagreement regarding the development of an Electronically Stored Information (ESI) Protocol. Rejecting as speculative the defendant's concern that entering an ESI Protocol would frustrate and slow the discovery process, the court ordered the parties to meet and confer to develop an ESI Protocol in light of the "clear thrust of the discovery-related rules, case law, and commentary," including the Federal Rules of Civil Procedure, case law and the Sedona Conference that suggest communication is crucial to a successful discovery process. Turning to the production disputes, the court prohibited the defendant from using a secure and restrictive document-viewing website in lieu of actual production, finding the website was unduly burdensome, inefficient and unnecessary in light of a two-tiered protective order. The court also ordered the defendants to reproduce unusable, non-searchable files including an 18,000 page customer complaint database in their native format, disclose relevant source code, and meet and confer to determine the appropriate method of production for proprietary documents relating to the dispute. Monsanto Co. v. E.I. DuPont de Nmours & Co., 2011 WL (E.D. Mo. Mar. 18, 2011). In this intellectual property litigation, the defendants moved to compel production in response to the plaintiffs' alleged failure to meet the terms of a stipulated preservation and production agreement. Contending the defendants' interpretation of the agreement was overbroad, unrealistic and a moving target, the plaintiffs argued their obligations were satisfied by interviewing all stipulated custodians except former employees. Although the court agreed with the plaintiffs' narrower interpretation, it characterized the plaintiffs' decision not to interview former employees as "an inadequate and unsupportable excuse" and concluded the plaintiffs failed to comply with the custodian protocol required by the agreement. However, finding an order to fully comply at this point in the litigation would likely do "violence," and that the parties might already have received the requested information in late productions, the court instead ordered the parties to meet and confer and report any agreement concerning how to proceed with non-expert discovery, after which time the court will rule on the 12 categories included in the defendants' motion to compel. Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., 2011 WL (E.D. Mich. Feb. 17, 2011). In this discovery dispute, the plaintiff moved for a protective order in response to the defendant s informal request for additional information. Having produced more than 1.79 million pages of documents during discovery, along with 84,000 pages of documents from its non-party Japanese parent company, the plaintiff argued the order was necessary to prevent producing its 39

40 record retention policies and data map, and conducting broad system-wide searches along with searches of systems not readily accessible. Although the court agreed the backup systems were not readily accessible, it found that the defendant had not requested this information or the systemwide searches. Instead, the defendant requested the plaintiff s backup policies, tracking records, requests for restores and confirmation that relevant data sources of 41 employees had been searched. Regarding the data map, the court noted that counsel must be knowledgeable about their client s computer systems and ESI at the onset of litigation pursuant to Fed.R.Civ.P. 26(a)(1)(ii); thus, producing this information should not be an undue burden. Accordingly, the court denied the protective order. Seven Seas Cruises S. DE R.L. v. V. Ships Leisure SAM, No. 1:09-cv UU (S.D. Fla. Feb. 19, 2011). In this breach of contract dispute, the plaintiffs requested sanctions and production, alleging the defendants intentionally and continuously failed to produce all responsive ESI. The defendants conceded not all relevant ESI was produced, noting that "in hindsight, an E-discovery consultant/vendor should have been retained." However, the defendants argued that they had agreed to re-run recent searches, that they would run searches on additional custodians identified by the plaintiffs and that the plaintiffs had access to much of the information via copies of correspondence between the parties. Noting that much of the dispute could have been significantly narrowed if not totally avoided through a pre-trial conference, the court agreed the defendants' searches were wholly inadequate and found their failure inexcusable. Accordingly, due to their repeated failure to conduct full and complete ESI searches, and the failure to retain a consultant to conduct such searches, the court ordered the defendants to utilize a third party vendor and pay the associated attorney fees and costs. The court declined to recommend default judgment, finding a lack of bad faith and no non-speculative evidence of prejudice. Christou v. Beatport, LLC, 2011 WL (D. Colo. Feb. 10, 2011). In this antitrust litigation, one of the defendants moved for a protective order staying all discovery pending the adjudication of its motion to dismiss. Opposing the motion, the plaintiff argued that if discovery did not proceed, information stored by nonparties would be lost or destroyed pursuant to automatic retention schedules, or might be archived and require increased costs to restore, ultimately resulting in delays and financial harm. In support of the motion, the defendant offered a hypothetical scenario to demonstrate that it, along with the court and nonparties, would be burdened by discovery proceedings, protracted discovery disputes and piecemeal litigation. Finding the defendant failed to provide specific demonstrations of fact to establish good cause, and that granting the motion would cause piecemeal litigation and run counter to the public interest, the court denied the protective order. Heraeus Kulzer, GMBH v. Biomet, Inc., Nos , (7th Cir. Jan. 24, 2011). In this foreign trade secrets litigation, the plaintiff appealed the district court s denial of its request for discovery in U.S. federal district court pursuant to 28 U.S.C Noting that discovery in the federal court system is broader than in most foreign countries, the court listed several potential abuses that could warrant a denial including, inter alia, harassing the opposing party, swamping a foreign court with fruits of American discovery and gaining an arbitrary advantage through the lack of reciprocity in access to broad U.S. discovery. The court determined the defendant failed to demonstrate any such abuses, finding it was not seeking to circumvent German law and successfully demonstrated a need for extensive discovery for aid in its foreign lawsuit. Next, asserting that the Federal Rules of Civil Procedure apply with respect to foreign discovery, the court found the defendant failed to demonstrate undue burden and refused to cooperate or negotiate directly with the plaintiff to modify the scope of discovery. Accordingly, the court reversed and remanded for consideration of the discovery request under federal discovery rules. 40

41 United States v. Halliburton Co., 2011 WL (D.D.C. Jan. 24, 2011). In this qui tam action alleging fraud perpetrated against the United States, the plaintiff requested an order from the court requiring the defendants to search the electronic data of all employees who were copied on s that were previously produced. The defendants argued that this search would encompass an additional 35 custodians that possess an average of 15 to 20 GB of data and that it would take two to ten days per custodian for the collection process before review could occur. Denying the plaintiff s request for additional searches, the court noted that the defendants had already spent a king s ransom of $650,000 on discovery and had produced more than 2 million paper documents, thousands of spreadsheets and more than half a million s. Further, the court determined the plaintiff failed to demonstrate that any s not produced were crucial to her claims. DeGeer v. Gillis, 2010 WL (N.D. Ill. Dec. 8, 2010). In this ongoing employment contract litigation, the defendants moved to compel the non-party former employer s compliance with a subpoena for ESI. Arguing that an order to search additional custodians and backup tapes along with the application of supplementary search terms would likely yield a needle in a giant haystack search that would lead to undue burden and expense, the non-party refused compliance unless costs were shifted to the defendants. Noting it was immersed in a discovery dispute that likely could have been avoided by the exercise of cooperation and compromise among counsel, the court ordered limited additional keyword searches and tailored searches of certain data custodians. Finding that neither party approached production with a spirit of cooperation or efficiency, the court ordered the parties to share cost responsibility for any future electronic production, except the costs related to searching the non-party s former CEO s data as he employed a policy of immediately deleting s to avoid production during discovery. United States v. Warshak, 2010 WL (C.A.6 (Ohio) Dec. 14, 2010). In this criminal case, the defendants appealed their numerous convictions for fraud claiming the government violated the Fourth Amendment prohibition against unreasonable search and seizures by obtaining private e- mails without a warrant. The defendants also argued that the government turned over immense quantities of discovery in a disorganized and unsearchable format, that the government violated its Brady obligations by producing gargantuan haystacks of discovery and that the district court erroneously denied a 90-day continuance to allow the defendants to finish sifting through the mountains of discovery. Addressing the Fourth Amendment concerns, the court first found the defendant plainly manifested an expectation that his s would remain private given the sensitive and sometimes damning substance of the s, viewing it as highly unlikely the defendant expected the s to be made public as people seldom unfurl their dirty laundry in plain view. Next, the court determined that it would defy common sense to treat s differently than more traditional forms of communication and found that neither the possibility nor the right of access by the Internet Service Provider (ISP) is decisive to the issue of privacy expectations. Based on these conclusions, the court held the government may not compel an ISP to turn over e- mails without obtaining a warrant first. However, the court ultimately found the government relied in good faith on the Stored Communications Act in obtaining the s and determined the exclusionary rule does not apply. Turning to the prodigious volume of discovery that consisted of millions of pages, the court disagreed with the defendants arguments, noting in particular that Fed.R.Crim.P. 16 is silent on what form discovery must take. Tamburo v. Dworkin, 2010 WL (N.D. Ill. Nov. 17, 2010). In this business tort litigation, the defendants moved to stay discovery pending adjudication of their motion to dismiss. Recognizing that a "garden-variety motion to dismiss" does not ordinarily warrant a stay of discovery which would delay resolution of the already six year-old lawsuit the court nevertheless noted that the Fed.R.Civ.P. 26 proportionality test allows limits on discovery if the 41

42 burden outweighs the benefit. Accordingly, the court ordered the parties to meet and confer to prepare a phased discovery schedule and familiarize themselves with the court s Case Management Procedures, the Seventh Circuit s Electronic Discovery Pilot Program s Principles Relating to the Discovery of Electronically Stored Information and the Sedona Conference Cooperation Proclamation. In developing the schedule, the court ordered that the initial phase would only consist of written discovery on named parties and advised the parties to focus on completing initial disclosures first, then concentrate and prioritize efforts on the most viable claims and least expensive and burdensome discovery procedures going forward. Corbello v. Devito, 2010 WL (D. Nev. Nov. 12, 2010). In this intellectual property litigation, the court considered several discovery motions filed by both parties, including the requested production of native files, communications and privilege logs. The court had previously admonished counsel regarding their lack of cooperation concerning electronically stored information and the exchange of ad hominem attacks, and in an attempt to settle the ongoing discovery disputes, ordered the parties to file a joint status report following a meet and confer session. Despite making significant progress, the parties were unable to reach a resolution, leaving several issues before the court. Addressing these motions, the court denied the request for native files as an unjustifiable waste of time and resources because the requested information was already produced in PDF form, which constituted a reasonably useable format. Regarding the requested communications, the court agreed with the defendants that the scope of the request and bulk of information available warranted a temporal limitation on discovery. Finally, the court ordered the defendants to produce a privilege log within thirty days of the order. Mezu v. Morgan State Univ., 2010 WL (D. Md. Oct. 22, 2010). In this Family Leave and Medical Act litigation, the parties filed multiple cross-motions including the plaintiff s motions to compel and extend discovery and the defendant s motion for terminating sanctions. Finding that counsel for both parties exhibited a substantial disregard of the federal and local rules and guidelines, the court temporarily halted the filing of additional discovery motions, denied all pending motions and set discovery guidelines going forward. Citing an affirmative duty to cooperate, the court admonished counsel for filing a barrage of motions and countermotions, which demonstrated counsels intent to use this Court as a trampoline on which to exercise their mutual animosity in violation of Fed.R.Civ.P. 26(g)(1). In an effort to end the discovery grudge match, the court suspended all discovery motion filings until he was convinced that discovery was proceeding appropriately. To facilitate this process, both parties were ordered to submit a written verification that they carefully read the Federal Rules of Civil Procedure, the Local Rules, the Discovery Guidelines of the District of Maryland and the Mancia v. Mayflower Textile Services opinion. The court also ordered the parties to engage in an in-person, recorded meet and confer session to cooperatively resolve existing disputes and develop a joint discovery plan. SOC-SMG, Inc. v. Day & Zimmerman, Inc., 2010 WL (Del. Ch. Sept. 15, 2010). In this complex transactional dispute involving the sale of a limited liability company (LLC), the petitioner sought to disqualify opposing counsel, impose monetary sanctions, suppress use of allegedly privileged ESI and terminate the claims and defenses pending in arbitration, arguing public policy mandated the court rather than arbitrators to adjudicate the alleged misuse of ESI because ethical violations were involved. Emphasizing that the petitioner itself initiated the arbitration agreement, the court affirmed the power of arbitrators to rule on disqualification and privilege motions and declined to become involved. Nevertheless, the court hinted at the likely outcome on the merits given the reality that the petitioner sold its ESI, as part of the asset sale, to the LLC failed to retain control over the servers on which it claims privileged information rests and failed to screen its ESI or negotiate carve-outs for allegedly privileged ESI before turning it over to 42

43 the LLC. The court further admonished the petitioner for its self-serving desire to use allegations of attorney misconduct as procedural weapons. Noting the petitioner is free to forgo arbitration in the future, the court denied the motion and entered summary judgment for the respondent. Barrera v. Boughton, 2010 WL (D. Conn. Sept. 20, 2010). In this racial profiling and harassment litigation, the plaintiffs sought to compel production of electronically stored information from 40 custodians with 80 keywords over a period of six years. Estimating the cost (absent attorney document review) to be $60,000 and noting that they had already produced 948 s, none of which supported the plaintiffs claims, the defendants objected that the ESI was not reasonably accessible and that such a request was unduly burdensome and overbroad. Agreeing with the defendants accessibility argument, the court found the plaintiffs failed to show good cause and ordered a phased approach to discovery. Using the plaintiffs search terms, the defendants were ordered to conduct a search of three of the 40 originally requested custodians for a three-year period. The court held that, as modified, the request did not constitute an undue burden or expense, and it therefore rejected the defendants cost-shifting request. In re Howard K. Stern, 2010 WL (Tex.App.-Hous. (1 Dist.) Aug. 25, 2010). In this defamation suit, the defendant petitioned for a writ of mandamus seeking to vacate the trial court's discovery orders and the appointment of a special master. The defendant argued the trial court abused its discretion by ordering overbroad discovery, assigning a special master to conduct a forensic examination of his hard drive despite no evidence of discovery noncompliance and authorizing the forensic examination as it exceeded the scope of discovery relevant to establish personal jurisdiction. Upon review of the record, the court found the motion to compel production of the defendant's hard drive and communications between 39 individuals was excessive and amounted to "an impermissible 'fishing expedition.'" The court further rejected the appointment of a special master who had "virtually free reign to plumb" the defendant's hard drive, and which the trial court had authorized based solely on the plaintiff's allegations that the defendant was noncompliant. Finding a clear abuse of discretion, the court granted the petition and vacated the discovery order. Amira-Jabbar v. Travel Servs. Inc., 726 F.Supp.2d 77 (D. Puerto Rico July 28, 2010). In this racial discrimination litigation, the plaintiff argued the defendant was liable for an allegedly racist comment that an employee posted on Facebook as the defendant allowed its employees to post photos and comments on the website during company time for company purposes, and did not have a firewall or software in place to prevent employees from using the site. The defendant moved for summary judgment, asserting it was not responsible for the incident because it had no ownership or control over the Facebook account, and did not authorize the plaintiff's co-worker to post comments. Finding the defendant responded promptly and appropriately by blocking site access for all office computers after receiving a complaint from the plaintiff, the court held the plaintiff's allegations were insufficient to establish a hostile work environment claim and granted summary judgment for the defendant. Multiven, Inc. v. Cisco Sys. Inc., 2010 WL (N.D. Cal. July 9, 2010). In this antitrust litigation, the court adopted the magistrate judge s recommendation directing the plaintiff and counter-defendant to retain a third party vendor for assistance with further data collection, search, review and production. Having earlier rejected the idea of using an outside vendor, the producing parties instead relied on approximately five attorneys to review a giant mass of information without using search terms. Concerned by the looming discovery deadline and anticipating no end in sight to the process, the court agreed that something must be done. The court approved the order recommending that a vendor assist with this increasingly perilous situation, with the defendant paying half of the costs as it so offered. Noting that there are several more [discovery] 43

44 problems on the horizon, the court additionally recommended granting full authority to a previously appointed special master to help the parties resolve any further discovery issues, such as choosing a third party vendor if the parties could not reach an agreement, crafting a search protocol and establishing deadlines. Union Pac. R.R. Co. v. United States Envtl. Prot. Agency, 2010 WL (D.Neb. June 24, 2010). In this environmental contamination dispute, the plaintiff sought a temporary restraining order and preliminary injunction against the Environmental Protection Agency (EPA). Seeking to evaluate the merits of the EPA's lead contamination claim, the plaintiff requested information pursuant to the Freedom of Information Act (FOIA). Based on information contained in s gathered from the initial disclosure, the plaintiff argued that an EPA supervisor ordered employees to destroy information responsive to the plaintiff's FOIA requests and "relevant in future enforcement actions." Granting the temporary restraining order to prevent further destruction of evidence, the court ordered the defendant to produce all relevant data and designate "an individual well acquainted" with its technology, electronically stored information systems and management structure to ensure proper enforcement of the order. Major Tours, Inc. v. Colorel, 2010 WL (D.N.J. June 22, 2010). In this racial discrimination litigation, the plaintiffs appealed the magistrate judge's discovery ruling. The magistrate judge granted a protective order for the defendants' backup tapes based on several factors, including the $1.5 million cost of tape restoration and the lack of evidence regarding the defendants' culpability as to why the s were now inaccessible. The plaintiffs argued the magistrate judge improperly minimized the defendants' failure to implement a litigation hold, which necessitated an order to restore the data. After considering the Zubulake decisions and the Federal Rules of Civil Procedure, the court found no support for the "prophylactic bright line" rule advocated by the plaintiffs. Instead, the court adopted the approach by Magistrate Judge Facciola in Disability Rights Council of Greater Washington v. Washington Metropolitan Transit, which concluded that a party's culpability is just one of seven factors that should be weighed. The court also stated it would not order "over a million dollars worth of discovery" to be performed "on the off chance that it might add to the five year's worth of discovery already obtained, just because there is some risk that relevant s were not preserved." Finding no abuse of discretion, the court affirmed the protective order. City of Ontario, California v. Quon, 2010 WL (U.S. June 17, 2010). In this appeal addressing an employer s search of an employee s text messages, the United States Supreme Court found the search to be reasonable, but declined to issue a broad holding concerning employees privacy expectations vis-à-vis employer provided technological equipment. Addressing the reasoning for the search (i.e., review of the text message transcripts), the court found the City possessed a legitimate interest in ensuring employees were not forced to pay for overages out-ofpocket and that the City was not paying for personal communications. In regard to the search itself, the court found the City s method of reviewing the text message transcripts to be reasonable as it was an efficient and expedient way to determine the nature of the overages. In support of this decision, the court noted the steps taken to reduce the search intrusiveness, such as the restriction of the search date range and limitation of transcript review to messages sent by the employee while on-duty. The court also discussed that the employee should have understood or anticipated that it might be necessary for the City to audit the pager messages to determine whether the pagers were being appropriately used, or to assess the SWAT team s performance in emergency situations (the primary purpose for the pager issuance). Finally, the court determined the Ninth Circuit erred in suggesting the City could have used less intrusive means to make the overage 44

45 determinations and also held that the search was not rendered unreasonable by the assumption that Arch Wireless violated the Stored Communications Act by turning over the transcripts. Universal Delaware, Inc. v. Comdata Corp., 2010 WL (E.D.Pa. June 4, 2010). In this antitrust litigation, one of the defendants requested a protective order shielding itself and a nonparty from complying with a subpoena served upon the non-party, arguing it was "harassing" and an "unwarranted fishing expedition" that improperly sought production of irrelevant and proprietary information. The defendant also argued the subpoena was unduly burdensome as it would require collecting, reviewing and producing data from 38 total custodians who possessed approximately 1,017 gigabytes each. The court denied the defendant's undue burden argument, citing the likely overlap of custodians, existence of tools designed to reduce the burden of reviewing ESI, feasibility of adding search terms, exaggerated page counts and the defendant's failure to argue that ESI was not reasonably accessible. The court also found the language of a prior governing protective order sufficient to protect information disclosed, especially since the disclosures would be to the plaintiffs and not the co-defendants who are the defendant's competitors. Barnes v. CUS Nashville, LLC, 2010 WL (M.D. Tenn. June 3, 2010). In this slip and fall tort action, the defendant moved to compel ESI and for a trial continuance to resolve the protracted arguments between parties regarding the plaintiff's and witnesses' Facebook photos and s. The magistrate judge found that the defendant's mishandling of a Facebook subpoena caused a major delay in discovery, while also noting that "[c]ooperation on the part of both parties could have prevented this delay." To resolve this discovery issue expeditiously, the magistrate judge stated he was willing to create a Facebook account. If the witnesses would accept the judge as a Facebook "friend" "for the sole purpose of reviewing photographs and related comments in camera," he would "promptly review and disseminate any relevant information to the parties" and then close the account. Additionally, the judge reviewed submitted materials from the plaintiff's Facebook account and deemed one message, seven pictures and the accompanying metadata relevant to the case. Ultimately, the judge granted the continuance but denied the motion to compel ESI for lack of jurisdiction. Helmert v. Butterball, LLC, 2010 WL (E.D.Ark. May 27, 2010). In this employment litigation, the plaintiffs alleged the defendant s production response was inadequate based on its failure to conduct a meaningful search of electronic information. The defendant argued the plaintiffs request was overbroad, addressed information that was not reasonably accessible and would require privilege determinations. Addressing one of the four search term categories, the court determined it was narrowly tailored except for the terms that would require an electronic search of s for one term within the same sentence as another term, since the plaintiff offered no evidence that the search could be performed electronically. The court found the second category of terms to be duplicative and unnecessary, but held the third and fourth term categories were appropriately constructed. Next, the court narrowed the custodian list to include only the employees who were likely to possess relevant information and denied the proposed search of backup tapes, finding the information not reasonably accessible. The court also ordered a search of hard drives, laptops and personal accounts of two custodians for the identified search terms. Finally, the court denied the defendant s request for cost-shifting as it had not ordered the restoration and search of backup tapes. Eurand, Inc. v. Mylan Pharm., Inc., 2010 WL (D.Del. Apr. 13, 2010). In this patent litigation, the defendants sought further discovery arguing the plaintiffs failed to disclose pertinent information and requested disclosure of search terms used. Maintaining that a comprehensive search of all relevant files was performed, the plaintiffs argued that the defendants motion was a back door effort to obtain information previously denied by the court. Noting that the defendants 45

46 arguments forced the court into mysteries of keyword search techniques [and] the efficacy of various methods used to search electronically stored information the court acknowledged that [n]either lawyers nor judges are generally qualified to evaluate the adequacy of keyword search terms. Despite this, the court employed a reasonableness test to determine whether the search performed was adequate, or could have been expected to produce the information requested. While the plaintiff s search appeared adequate, it may not have included evidence of subjective intent, and thus limited, additional searching was warranted. The court also declined to order disclosure of the search terms used. United States v. Sedaghaty, 2010 WL (D.Or. Apr. 13, 2010). In this criminal case, the defendant moved to suppress electronic evidence and prevent additional searching of nine computer hard drives seized and copied during the execution of a search warrant. Citing United States v. Comprehensive Drug Testing, the defendant argued the government exceeded the warrant s scope by searching the computer hard drive. Acknowledging the importance of the cited case, the court noted that the warrant and seizure in this case predated the Comprehensive Drug decision, which was not intended to be applied retroactively. Finding the procedure utilized was consistent with pre-existing case law, the court determined appropriate search terms were used that were reasonably related to the items described in the warrant. The court also noted that government exercised care in this case that exceeded what is required given the nature of white collar crimes and denied the defendant s motion to suppress. Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL (D.Colo. Feb. 8, 2010). In this misappropriation of trade secrets litigation, the court addressed several motions, notably the defendants motion for a protective order. The defendants argued the production requests exceeded the discovery permitted by a previous court order, imposed an unreasonable expense and burden, and sought information that was duplicative or not likely to lead to the discovery of admissible evidence. Noting the burden required for a protective order cannot be met with bald generalizations, the court found the defendants undue burden and expense arguments regarding the discovery of ESI unpersuasive. The defendants did not provide specific information regarding ESI storage, the number of backup or archiving systems in place, or the capability to retrieve information. Rather the defense counsel argued that producing this information would affect profitability and client service. Determining this statement to be the e-discovery equivalent of an unsubstantiated claim that the sky is falling, the court denied the defendants motion in part and ordered the defendants to supplement their discovery responses. The court also noted that e- discovery has simply become too expensive and too protracted to permit superficial compliance with the meet and confer requirement under the Fed.R.Civ.P. and endorsed the Sedona Conference Cooperation Proclamation. Enquip Tech. Group, Inc. v. Tycon Technoglass, S.R.L., 2010 WL (Ohio App. 2 Dist. Jan. 8, 2010). In this complex international business litigation, the defendants appealed an order of the trial court that held the European Union Data Protection Directive 95/46/EC ( Directive ) did not limit discovery. The defendants argued that the trial court s ruling was a clear error, and that the exception provided in Article 26(1)(d), which permits the transfer of data when necessary to establish, exercise or defend legal claims, was inapplicable. In response, the plaintiffs claimed that the defendants failed to meet the burden required to obtain a protective order because no effort was made to demonstrate the relevance of the Directive to any of the plaintiffs specific discovery requests. Agreeing with the plaintiffs, the appellate court affirmed the trial court s ruling. In support of its opinion, the appellate court cited the trial court s reasoning that the defendants subjected themselves to Ohio law by doing business there and that no reason existed to preclude response to discovery requests under the Ohio Rules of Civil Procedure. 46

47 MRT, Inc. v. Vounckx, 2009 WL (Tex.App.-Dallas, Oct. 30, 2009). In this civil litigation case, the plaintiffs appealed from a jury verdict in favor of the defendants, arguing they were entitled to a new trial because the defendants failed to comply with discovery obligations and misrepresented the steps taken to search and produce backup tapes (some of which were destroyed). The defendants argued the plaintiffs failed to make a specific request for the backup tapes as required by Texas Rules of Civil Procedure Citing In re Weekley Homes, L.P. and the specificity requirement of Rule 196.4, the court disregarded the plaintiffs' contentions and affirmed the lower court's judgment. The court noted Rule 196.4's purpose was to ensure the clear understanding by both parties of ESI requests and reiterated the duties of both parties to share pertinent information regarding electronic storage systems prior to e-discovery requests, which did not occur in this case. Finally, the court concluded that the plaintiffs failed to demonstrate that the defendants knew, or should have known, that the destroyed tapes contained relevant information, and they therefore were not entitled to spoliation instructions because the defendants did not have a duty to preserve the backup tapes in question. In re Global Power Equip. Group, Inc., 2009 WL (Bkrtcy.D. Del. Oct. 28, 2009). In this bankruptcy proceeding, the debtors filed a motion to compel the claimants, a Dutch corporation, and its agent entity, a French corporation, to comply with discovery requests under the Federal Rules of Civil Procedure (FRCP). The claimants argued the French Blocking Statute prescribes sanctions for any French corporation that "engages in the discovery process of a foreign judicial proceeding without using the procedures established under the Hague Evidence Convention." According to a U.S. Supreme Court case, when a court is asked to use the Hague Evidence Convention procedures, it must conduct a "comity analysis" to determine whether the FRCP or the Hague Procedures apply. The "comity analysis" requires consideration of five factors: the importance of documents, degree of specificity of the request, whether information originated in the United States, availability of alternative means and the effect of noncompliance on interests of the United States or the state where the information is located. Concluding the chance of prosecution under the French Blocking Statute to be minimal, the court determined the factors weigh in favor of using the FRCP to govern discovery in this case. Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 WL (E.D. Wis. Oct. 15, 2009). In this discovery dispute, the plaintiff requested production of the defendants' "computers and other electronic storage devices" for computer forensics analysis. The defendants argued that the plaintiff failed to demonstrate the need for a sequestering of all of the defendants' electronic devices. Denying the plaintiff's motion, the court found the plaintiff failed to justify the need for the forensic mapping of the defendants' entire computer system. However, the court acknowledged the need for the defendants to develop an organized system for the preservation and production of relevant ESI. The defendants' "click through" process to search s "did not meet the level of diligence required for a fair discovery process." The court noted that the primary motivation for its decision was the failure of both parties to advance alternatives for discovery methods and stated that it expected the parties to develop a meaningful ESI discovery plan. Whitlow v. Martin, 2009 WL (C.D. Ill. Oct. 15, 2009). In this employment dispute, the plaintiff subpoenaed a non-party seeking production of electronic information relevant to the defendants' employment practices. The non-party's numerous objections to the subpoena included that the requests were not reasonably likely to lead to the discovery of admissible evidence, could be obtained from more convenient sources, sought not reasonably accessible documents, and were overly broad and unduly burdensome. The non-party claimed complying with the subpoena would cost hundreds of thousands of dollars and would take more than two years to complete because several Microsoft Exchange Servers and 200 to 300 file servers located across the state 47

48 would have to be searched. Acknowledging the non-party status as a significant factor in determining whether a subpoena presents an undue burden, the court applied a relative hardship test to determine if the burden outweighed the value of the produced material. After considering such factors as relevance, need and particularity, the court, while slightly modifying the production requirements, ordered the non-party's compliance with the plaintiff's subpoena. High Voltage Beverages, LLC. v. Coca-Cola Co., 2009 WL (W.D.N.C. Sept. 8, 2009). In this trademark infringement litigation, the plaintiff filed a motion to compel 17 gigabytes of data, which amounted to about 1.5 million pages. The defendant did not object to producing the documents but argued that a review was unnecessary as it believed every document related to the merits of the underlying action had already been produced. Applying Fed.R.Civ.P. 26(b)(2)(C)'s proportionality standard, the court determined the plaintiff's request would be unreasonably duplicative of earlier efforts and outweighed its likely benefit because the plaintiff had ample opportunity to obtain the information, which in all likelihood, it had already obtained. The court further held that the defendant must extend to the plaintiff's counsel the opportunity to search data on the defendant's computers at the defendant's place of business. In re Weekly Homes, L.P., 2009 WL (Tex. Aug. 28, 2009). In this breach of contract litigation, the defendant petitioned the Texas Supreme Court for writ of mandamus of a trial court order that directed the defendant to provide four employees' hard drives to the plaintiff's forensic experts to image, copy and search for deleted s. The defendant argued that the plaintiff failed to comply with Texas Rules of Civil Procedure which governs production requests for electronic data. Applying Rule 196.4, the court found the trial court did not abuse its discretion regarding the deleted s request even though the plaintiff failed to satisfy the rule's specificity requirement since it became "abundantly clear" that this information was sought and no prejudice was suffered by the defendant. Turning to the imaging and forensic examination dispute, the court relied on the Federal Rules of Civil Procedure and case law since there are no express guidelines contained within Rule Through this analysis, the court determined that the trial court abused its discretion since the search of the employees' hard drives was highly intrusive and unjustifiable. The court granted the writ of mandamus and remanded the case advising the trial court to be mindful of protecting sensitive information by utilizing the least intrusive means necessary to facility e-discovery. United States v. Comprehensive Drug Testing, Inc., 2009 WL (Cal. App. 9 Dist. Aug. 26, 2009). In this federal investigation into steroid use by professional baseball players, the government appealed three orders entered by separate courts in the Ninth Circuit relating to the search and seizure of electronic information. The government argued it complied with the protocols set forth in United States v. Tamura and also that it was allowed to seize any additional data related to other players' steroid use under the plain view exception of the Fourth Amendment. Labeling the government's argument as "too clever by half," the court determined the government should "forswear reliance on the plain view doctrine or any similar doctrine" regarding seizure of data requiring segregation. The court also held that any future search warrant application should include a protocol that prevents agents from examining or retaining data other than that specified in the warrant, which may require segregation to be conducted by an independent third-party to protect privacy interests. Finally, the court acknowledged the reality that over-seizure of data is part of the electronic search process and issued five guidelines magistrate judges must follow when the government seeks a warrant regarding examination of electronic media. The guidelines aimed "to strike the proper balance between the government's legitimate interest in law enforcement and the people's right to privacy and property... as guaranteed by the Fourth Amendment." 48

49 Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL (S.D.N.Y. Aug. 13, 2009). In this copyright infringement litigation, the court addressed several discovery disputes it claimed could have been avoided if the parties had "focused their attention on discussing their differences, rather than drafting dueling epistles." Addressing the defendant's issues, the court did not agree with the defendant that producing and searching files would be unduly burdensome. Thus the court ordered the defendant to conduct thirty searches proposed by the plaintiffs, which included additional custodians. The court then addressed the plaintiffs' arguments that the discovery sought by the defendant was unduly burdensome in part because they were unable to conduct centralized searches without relying on an outside service provider. Noting that the day will come when the burden argument based on a large organization's lack of internal e-discovery software will not be well received, the court found that e-discovery case law had not yet developed to this point. Therefore, the court upheld the plaintiffs' argument and concluded that the files the defendant sought to search were not reasonably accessible. Finally, the court considered the specific document requests from the defendant to the plaintiffs that were at issue, and restricted the search terms and production scope as appropriate for each request In re Rail Freight Fuel Surcharge Antitrust Litig., 2009 WL (D.D.C. July 2, 2009). In this antitrust action, the defendants moved for bifurcated discovery between class certification and merits discovery. The defendants contended that bifurcated discovery was possible through the use of search terms to effectively isolate electronically stored information (ESI) relevant to "certification" but not "merits" discovery. The defendants argued that bifurcated discovery would facilitate early resolution of the certification issue and reduce the burden of subsequent merits discovery. In opposition, the plaintiffs argued that certification and merits discovery are indistinguishable as evidence regarding the merits was also crucial to certification. The plaintiffs also argued that bifurcated discovery would forced the defendants to conduct document review to classify ESI as either class certification or merits discovery as no search engine could effectively distinguish between the two, and thus simultaneous discovery would be more efficient and cost effective. Magistrate Judge Facciola agreed with the plaintiffs' contention that the issues involved in certification and merits discovery were closely intertwined. The court expressed doubt that the defendants' could effectively distinguish between the two categories of documents, noting that the defendants did not propose exactly how the lawyers will "create a search engine so refined and exquisite." The court also held that bifurcation would delay the proceedings and hinder judicial economy, citing the delays and costs associated with continued need for judicial supervision and the increased number of disputes over discovery in a bifurcated case. Accordingly, the court denied the motion for bifurcated discovery. Lluerma v. Owens Ill. Inc., 2009 WL (Del. Super. June 11, 2009). In this toxic tort action brought by the plaintiffs (Spanish citizens who worked abroad on U.S. warships), the defendant filed a motion to dismiss based on forum non conveniens grounds. Among the defendant s contentions for Spain as the proper forum was that the alleged injury occurred in Spanish territory, most of the discovery was located in Spain and that Spain had advised the Hague Conference that it would not grant requests for pretrial discovery of documents. The plaintiffs countered that Spain was not an adequate forum as many of the defendant s employees and corporate records were in Delaware or were easily accessible to the defendant s Delaware counsel. Recognizing there were burdens to the defendant s procurement of evidence in Spain, the court nonetheless found that the defendant did not establish either an overwhelming hardship or the complete inability to procure discovery in Delaware and thus denied the defendant s motion. Am. Friends of Yeshivat Ohr Yerushalayim, Inc. v. United States, 2009 WL (E.D.N.Y. June 9, 2009). In this tax penalties litigation, the U.S. government sought an order to strike the 49

50 appellant s opposition papers, or the exhibits that were not previously produced during discovery that were filed in response to the government s motion for judgment on the pleadings. Previously, the appellant failed to respond to the government s discovery demands for four months during which it received three extensions, until responding that it was not in possession of the requested financial records and that the accountant was to blame for not conducting a thorough search for the documents. In considering whether sanctions were appropriate, the court found that the appellant s attorney s failure to ask the appellant s accountant for the financial records was beyond comprehension, as was his filing of the documents without notice to the government. The court noted that filing the documents without notice prejudiced the government in a way that, absent a preclusion order, could only be remedied by the court reopening discovery. Concluding the case had languished long enough, the court granted the government s motion for sanctions, precluding the financial records from evidence. The court also denied the appellant s cross-motion for preclusion sanctions. Council of the City of New Orleans v. Washington, 2009 WL (La. May 29, 2009). In this litigation, the Supreme Court of Louisiana held that the Court of Appeal erred when it vacated the preliminary injunction issued by the District Court since it considered a constitutional issue that was not raised on appeal. Previously in Council of the City of New Orleans v. Washington, 2009 WL (La. App.4 Cir. May 12, 2009), the Court of Appeal considered the defendant's appeal of the preliminary injunction preventing the defendant from disseminating s. The plaintiff argued the s were not sanitized for privilege, that ethical rules require return of the documents, and that the temporary nature of the injunction did not violate the defendant's First Amendment rights. Finding the injunction violated the defendant's constitutional rights since the records had already been released pursuant to a written public records request, the Court of Appeal vacated the injunction. The court recognized that ethical and procedural violations would likely be asserted against the defendant if the inadvertently privileged documents by definition not public records were disseminated but found the constitutional issues overrode any ethical concerns. Cont l Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL (S.D.Fla. Feb. 20, 2009). In this litigation, the plaintiff filed a motion to compel production and discovery compliance. Noting the parties were unable to cooperate regarding the imaging of the portable devices, the court provided further direction. The court set out the following procedure: the plaintiff would image the defendants portable electronic devices and the defendants would conduct a privilege search and create a privilege log. The court advised that the plaintiff s possession of any privileged information did not constitute a waiver. Klayman v. Freedom s Watch, Inc., 2008 WL (S.D.Fla. Dec. 4, 2008). In this litigation, the defendants moved the court to tax the costs of their electronic discovery collection to the plaintiff. The defendants requested the plaintiff pay the $150,000 they spent for expenses incurred in hiring an outside firm to collect their electronic documents, including travel expenses. Applying 28 USC 1920, which provides for the taxation of costs for fees for exemplification and copies of papers necessarily obtained for use in the case, the court denied the motion. The court refused to tax costs not specifically authorized by the statute, such as the hourly costs of collection at issue here. Kinnally v. Rogers Corp., 2008 WL (D.Ariz. Nov. 7, 2008). In this age discrimination litigation, the plaintiffs sought an adverse inference sanction alleging spoliation of relevant evidence. The plaintiffs claimed the defendant failed to issue a litigation hold, failed to produce document retention and destruction policies, and failed to produce certain evidence, which resulted in spoliation. The defendant argued the plaintiffs motion was raised after the close of discovery 50

51 and was therefore untimely and also that the plaintiffs failed to show that any of the requested documents were destroyed. Finding the discovery dispute should have been raised during the allowable discovery period, the court denied the plaintiffs motion as untimely. Moreover, the court determined the motion, had it been timely, would have been denied due to the lack of evidence that information was destroyed. Mancia v. Mayflower Textile Servs. Co., 2008 WL (D.Md. Oct. 15, 2008). In this collective employment action, the plaintiffs raised issues regarding numerous discovery and supplemental interrogatory requests. The defendants objected to these requests with, boilerplate, non-particularized objections. Frustrated with the party s inability to approach discovery responsibly, Chief Magistrate Judge Paul W. Grimm scheduled an in-court hearing to discuss the discovery violations and issued this opinion to explain concerns and instruct counsel on how to reach resolution. Judge Grimm stated that the failure to abide by Rule 26(g), requiring particularized facts for a discovery objection, was one reason for the excessive costs of discovery. He also stated that, discovery must be initiated and responded to responsibly, in accordance with the letter and spirit of the discovery rules, to achieve a proper purpose, and be proportional to what is at issue in the litigation, and if it is not, the judge is expected to impose appropriate sanctions to punish and deter. Due to the lack of record establishing an estimated amount in controversy, the court ordered the parties to meet and confer in good faith to: estimate a likely range of provable damages to quantify a discovery budget that is proportional to what is at stake in the case, discuss the additional discovery sought by the plaintiffs and attempt to reach an agreement, and provide the court with a status report indentifying any unresolved issues. Gaddis v. Smith & Nephew, Inc., 2008 WL (S.D.Miss. June 11, 2008). In this product liability litigation, the defendants filed a motion to dismiss claiming the plaintiff failed to comply with the deadline for court ordered initial disclosures. After the plaintiff failed to make initial disclosures despite a second order and extended deadline, the defendants sent a letter in an attempt to resolve the discovery dispute under Fed.R.Civ.P. 37. Finding the plaintiff completely failed to comply with any discovery requirements and respond to the motion to dismiss, the court dismissed the plaintiff s case without prejudice for failure to meet discovery obligations and comply with court orders. Ruiz v. Ed Richard Discing, Inc., 2008 WL (N.D.Cal. April 29, 2008). In this suit alleging unpaid overtime wages, the plaintiff filed a motion to compel production and sought monetary sanctions. Prior to the hearing, the defendants contacted the plaintiffs to inform that the documents were available and would be produced if the plaintiffs agreed to absorb the costs of copying. The plaintiffs agreed to pay for costs incurred for copying the documents. Holding the motion to compel to be technically granted since the documents in dispute have not yet been produced, the court stated this dispute should never have reached court intervention due to this prior agreement and denied the motion for monetary sanctions. Alexander v. F.B.I., 2008 WL (D.D.C. April 3, 2008). In this Privacy Act litigation, former employees and political appointees from the Reagan and Bush administrations brought suit against the FBI alleging violation of privacy interests after their FBI files were improperly handed to the Clinton White House a scandal known as Filegate. The plaintiffs filed an emergency motion to supplement their motion to compel and request for evidentiary hearing, claiming the Executive Office of the President ( EOP ) filed a false declaration in an attempt to obstruct the narrowed request for . Finding the plaintiffs did not demonstrate the EOP obstructed the request, or acted in bad faith, the court concluded no credible evidence existed to grant the emergency motion. In making this determination, the court found the essential errors committed by the White House s counsel were a result of the lawyers lack of familiarity with computer 51

52 terminology, all of which occurred long before the current sophisticated ways that lawyers have had to learn to deal with computer experts. Texas v. City of Frisco, 2008 WL (E.D.Tex. Mar. 27, 2008). In this case, the State of Texas sought a declaratory judgment and protection from a litigation hold request previously sent by the City of Frisco seeking preservation of all electronic data related to a potential environmental litigation. The defendant filed a motion to dismiss, arguing that the plaintiff was seeking an advisory opinion concerning the proper method of preservation without pleading all necessary elements of a viable claim. Agreeing with the defendant and dismissing the case, the court determined the issues were not yet ripe and encouraged both parties to make a good faith effort in preservation and production of documents in the absence of court intervention. In re World Trade Center Disaster Site Litig., 2008 WL (S.D.N.Y. Mar. 24, 2008). In this ongoing multi-district litigation, the plaintiffs objected to the court-appointed special master s recommendation that a third party be hired to build, maintain and operate a database of Core Discovery. The plaintiffs objection focused on the great expense and claimed lack of necessity associated with creating such a large database. The court, sensitive to the costs of the litigation, approved the recommendation due to the necessity of a common core of reliable information in this important litigation. Thomas v. IEM, 2008 WL (M.D.La. Mar. 12, 2008). In this discrimination suit, the plaintiff served a Fed.R.Civ.P. 45 subpoena on the defendant (her former employer), seeking production of a complete electronic copy of the boxes of nine named individuals as they appeared on a specified date. Rather than responding to the subpoena, the defendant served formal objections to the plaintiff who then filed this motion to compel a response to the subpoena. The defendant objected to the use of a Rule 45 subpoena on a party as well as the limited response time and argued that the information sought was irrelevant, confidential, duplicative and unduly burdensome. Agreeing with the defendant, the court denied the plaintiff s motion as the information sought constituted discovery within the meaning of Fed.R.Civ.P. 26 and 34 and the request was not limited in time or subject matter. Arista Records, LLC v. Does 1-4, 2007 WL (W.D. Mich. Nov. 20, 2007). In this copyright infringement suit, the plaintiff requested leave to subpoena a third party internet service provider (ISP) to supply contact information for the four Doe defendants, who allegedly downloaded and distributed hundreds of music files illegally. In reaching its decision, the court considered the pending amendment to Fed. R. Civ. P. 26(d)(1) (which became effective December 1, 2007) that would allow for discovery prior to the Rule 26 hearing upon a showing of good cause. The court found that the plaintiff established good cause based on the allegation of a prima facia claim of copyright infringement, the limited period of time the ISP retained activity logs, the narrow tailoring of the request and the necessity of the information to the case. The court therefore allowed the plaintiff to take immediate discovery by serving a subpoena on the ISP. RLI Ins. Co. v. Indian River Sch. Dist., 2007 WL (D.Del. Oct. 23, 2007). In this case, the plaintiff filed a motion requesting the court to order the defendant to comply with the district of Delaware s default standard for the discovery of electronic documents. The motion was filed over one year after fact discovery ended per the scheduling stipulation. The plaintiff argued that the defendant failed to provide full and complete e-discovery based on the lack of computer generated documents relative to the overall volume of documents produced. Relying on Fed. R. Civ. P. 26(f)(3) which requires parties to discuss the form and scope of e-discovery prior to the Rule 16 conference, the court denied the plaintiff s motion which was filed months after the close of discovery and lacked a compelling reason to reopen. 52

53 United States v. Flinn, 2007 WL (E.D.Cal. Oct.16, 2007). In this suit charging the defendant with possession of child pornography, the defendant filed a motion seeking to have a mirror image of his seized hard drive and thumb drive removed from government facilities for expert examination purposes. The defendant challenged the constitutionality of an act requiring the government to main control of seized material constituting child pornography. The defendant claimed that no defendant in a child pornography case would have an ample opportunity to inspect the contraband unless the expert is free to take the contraband to an expert s facilities for use with the expert s own devices/software. No pertinent appellate court cases existed and several district court cases determined that the act was consistent with due process. Additionally, the court determined that the defendant and the expert made no attempt to differentiate his case from the ordinary child pornography case. Therefore, the court found the government facilities offering an ample opportunity to perform at least the initial examination of the seized materials. J.C. Associates v. Fidelity & Guar. Ins. Co., 2006 WL (D.D.C. May 25, 2006). In an insurance coverage dispute, the plaintiff challenged the defendant s interpretation of a policy exclusion clause and sought discovery of related claim and litigation files in the defendant's possession. The defendant resisted the discovery request, but conducted a preliminary electronic search of its 1.4 million claim and litigation files and identified 454 related claims. The judge articulated that the issue of whether or not to order discovery of the defendant s files was not a matter of relevance, but rather burdensomeness. The judge ordered file-sampling, instructing the defendant to randomly select and scan 25 of the 454 identified claims into an electronically searchable document. The court identified four specific search terms that the defendant should use in conducting and electronic search of the claims for responsiveness. The judge instructed the defendants to review documents containing those keywords and to produce any non-privileged, responsive information to the plaintiff. The court retained the authority to demand further discovery and allocate costs after reviewing the information produced from the 25 files. Kemper Mortgage, Inc. v. Russell, 2006 WL (S.D. Ohio Apr. 18, 2006). The plaintiff requested instructions on implementing a litigation hold for electronic evidence and demanded cost shifting for expenses related to the litigation hold. The plaintiff s computer forensic expert advised the plaintiff to effect a litigation hold by mirror imaging its server and laptops, which would cost approximately $4,000, an amount the plaintiff contended the defendant should pay. Denying the plaintiff s requests, the court noted the defendant had not imaged the plaintiff s computers because of the costs involved and the defendant had not yet made a demand on the plaintiff for a litigation hold. The court declared, One of the unexpected costs of using the electronic tool is that it may become costly to abide by one's duty to preserve evidence, but that is not a cost which can be shifted to the opposing party, at least in the absence of a demand for a litigation hold which seeks court enforcement and/or requests for discovery which can limit the amount of information which needs to be preserved. Thompson v. Jiffy Lube Int l, Inc., 2006 WL (D. Kan. May 1, 2006). In a class action consumer protection lawsuit, the defendant objected to a request for electronic documents including any and all information related to . The defendant claimed the request was overbroad and unduly burdensome since it would cost approximately $10 million to produce the documents in TIFF format. Countering, the plaintiffs asserted the defendant could first produce the documents in native PST format and then print the documents without any additional cost. Declining to rule on the issue of costs, the magistrate judge ordered the parties to confer and agree upon a data sampling protocol and/or production format. If the parties could not agree, a hearing would be held to determine production scope and cost-shifting. The magistrate also found the plaintiff s request for overly broad and stated, [t]he mere suspicion that a document 53

54 containing relevant evidence might be located in defendant's computer files does not justify the production of all communications or computer records... requests must be reasonably tailored to secure the production of documents relevant to the issues in this lawsuit. Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D.Md. 2005). In an action based on racial discrimination allegations, the plaintiffs requested hard copy and electronic records and issued interrogatories with questions specifically designed to discover the nature, extent, and location of electronically stored records, the [d]efendants' IT capabilities, the nature of archived data, , and records retention policies. Based on concerns about performing pre-production privilege review, the defendant claimed undue burden and expense. Referencing the proposed Federal Rules of Civil Procedure amendments, the court declared that both parties had a duty to negotiate a reasonable discovery plan and present the plan to the court. The court asserted, [t]he days when the requesting party can expect to get it all and the producing party to produce whatever they feel like producing are long gone electronic discovery is not played on a level field. The plaintiff typically has relatively few electronically stored records, while the defendant often has an immense volume of it. In such cases, it is incumbent upon the plaintiff to have reasonable expectations as to what should be produced by the defendant. The court ordered the parties to meet and confer within 30 days about e-discovery matters, including discovery scope and issues relating to privilege review. After that meeting, the court indicated it would conduct a follow-up hearing to discuss those issues. Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 21 A.D.3d 90 (N.Y. App. Div. 2005). The plaintiff sued the defendant for an alleged breach of an agreement to sell bonds. The defendant filed a cross-motion for summary judgment and requested the court dismiss the complaint for lack of personal jurisdiction. In negotiating the agreement, the parties had communicated through the Bloomberg Messaging System which provides instant messaging between Bloomberg subscribers for the purpose of negotiating and completing trades and dispensing other financial information. During the message exchanges, the plaintiff's director was located in New York, and the defendant's investment officer was located in Montana. At trial, the court found it lacked personal jurisdiction over the defendant and granted summary judgment. The plaintiff appealed. On appeal, the court determined it had personal jurisdiction over the defendant because the defendant had transacted business in New York even though it was physically located in Montana. The court stated, We cannot countenance defendant's argument that merely because plaintiff initially approached defendant through modern technology--which enabled defendant to very purposefully conduct a $15 million deal in Montana with a bank in New York--defendant should be allowed to evade jurisdiction because that very technology can technically be viewed as only furnishing services in Montana. TIG Ins. Co. v. Premier Parks, Inc., 2005 WL (Del. Super. Ct. Mar. 1, 2005). The defendants sought information about other litigation in which the plaintiff was involved where exposure was estimated to be worth more than $250,000. The plaintiff objected to the defendants request as extremely burdensome, arguing it would require the plaintiff to gather 50,000 computer files scattered around the country. Attempting to form a compromise and limit the burden, the court ordered the plaintiff to produce only discovery relating to class action suits during the last five years. As it did not have the means to search the files electronically based on class action status, the plaintiff began a manual review of its litigation database. After engaging in a lengthy review and incurring significant expense, the plaintiff requested permission to search only the files containing expenditures of more than $750,000. When the defendants refused to compromise, the plaintiff offered to search for cases estimated to be worth more than $500,000. The defendants again refused the offer and asked the plaintiff to search its entire database for the information. The 54

55 plaintiff denied the request and sought reconsideration of the court s earlier order. In response, the defendants argued the plaintiff should not be allowed to use its inadequate computer system as an excuse to avoid valid discovery obligations. On rehearing, the court determined a substantial burden was placed on the plaintiff and subsequently modified the original order to require review of case files totaling more than $500,000 in expenditures. Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 WL (S.D.N.Y. Feb. 24, 2005). In a breach of contract action, the defendant sought sanctions against the plaintiff for ignoring its discovery obligations, violating document production orders, and irremediably prejudicing the defendant s ability to prepare for its case. The defendant claimed that the plaintiff engaged in partial and delayed document production throughout the discovery period, specifically in one instance producing more than 600 pages of one day before a scheduled court conference. In assessing the defendant s motion, the magistrate judge found no coherent justification for the plaintiff to have engaged in an excruciatingly slow and disjointed disclosure of documents, stretching over a period of one year, under the guise of a rolling production or a production in waves. The magistrate further noted the plaintiff should have sought discovery extensions, produced substantially all of its documents early on, and ensured document searches were careful and thorough. The magistrate declined to dismiss the case and instead issued a detailed protocol that outlined remedial discovery measures, including payment of attorney s fees and costs relating to the motion, preclusion of some evidence, and reopening of specified depositions. Swack v. Credit Suisse First Boston, 383 F.Supp.2d 223 (D.Mass. 2004). In a class action suit involving investment fraud accusations, the plaintiffs argued that the defendants committed fraud by disseminating research reports they knew to be overly optimistic. The defendants filed a motion to dismiss for failure to state a claim, arguing the plaintiffs did not allege a specific false or misleading statement or omission by the company analyst or the company manager. In support of their claims, the plaintiffs produced messages from the company analyst to the company manager relating to the fraudulent reports. In reference to the stock, one of the s stated, I think there is a risk of bankruptcy best case is dead money. Based on this evidence, the court determined that the plaintiffs complaint properly raised an issue in reference to false statements made by the company analyst. However, the court determined no such showing existed concerning the company s manager, whose name was not on the misleading research reports and who had only received the s. Massimo v. State, 144 S.W.3d 210 (Tex. Ct. App. 2004). Challenging a misdemeanor conviction for harassment by electronic communication, the defendant argued, among other things, that the trial court erred by not granting her a continuance. Specifically, the defendant argued she was entitled to a continuance because she did not receive s, relied upon by the prosecution, until the day of trial. Defense counsel further argued that it needed the s in order to have an expert evaluate their source before trial. Denying the defendant s motion, the trial court noted copies of the s were available three days before trial and defense counsel should have picked up the copies at the District Attorney s office. On appeal, the appellate court also indicated that counsel should not have waited 17 days before the trial to file discovery and inspection of evidence motions and that counsel could have hired an expert even if the s were unavailable for review. In affirming the trial court s decision, the appellate court declared, the failure to obtain an expert or to obtain the s until the eve of trial can hardly be the fault of the State [the defendant] was at least partially, if not totally, responsible for their last-minute production. YCA, LLC v. Berry, 2004 WL (N.D.Ill. May 7, 2004). In a case involving the alleged breach of a restrictive covenant, the defendant requested that the court sanction the plaintiff by striking its computer expert s testimony and findings. Although the defendant s original deposition 55

56 indicated that a search of his computer was unnecessary, he later admitted that relevant documents may have existed on his computer. In response to the defendant s late admission, the plaintiff hired a computer forensic expert, who retrieved deleted documents from the defendant s computer. The defendant contended that his case was unfairly prejudiced because the plaintiff failed to disclose its computer expert in responding to the defendant s document production requests. The plaintiff asserted that the defendant s late admission justified its delay in disclosing the expert. The court declined to sanction the plaintiff stating that had the defendant wished to avoid unfair surprise concerning his legal strategy perhaps he should have followed the spirit of the discovery rules and informed YCA [earlier] that his YCA computer might contain relevant documents. In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 2004 WL (S.D.N.Y Feb. 18, 2004). Pursuant to a section of the Securities Exchange Act of 1934, the plaintiff sought an order lifting the automatic stay of discovery during the pendency of a motion to dismiss. The plaintiff contended that discovery was necessary to preserve and restore s deleted by the defendant. The court cited U.S. Code provisions permitting discovery when the legal sufficiency of the complaint has not been decided only if exceptional circumstances, such as the necessity to preserve evidence or to prevent undue prejudice to [a] party, exist. The defendant declared that it was aware of the preservation obligations and was taking all necessary steps to preserve all potentially relevant electronic documents. Therefore, the court denied the plaintiff s motion because the plaintiff failed to establish an imminent risk of data being deleted and rendered irretrievable. Fraser v. Nationwide Mutual Ins. Co., 352 F.3d 107 (3rd Cir. 2003). In an employment termination suit, the plaintiff alleged that the defendant violated the Electronic Communications Privacy Act (ECPA) by searching, without the plaintiff s express permission, the plaintiff s stored on the defendant s central file server. The ECPA prohibits intentionally access[ing] without authorization a facility through which an electronic communication service is provided. The court held that because the plaintiff s was stored on the defendant s system, the defendant s search of the plaintiff s fell within the exception to protection of the ECPA, which allows seizures of authorized by the person or entity providing a wire or electronic communication service. Go2Net, Inc. v. C I Host, Inc., 60 P.3d 1245 (Wash. Ct. App. 2003). After discovery commenced in a suit to collect payment due under a services contract, the parties exchanged document requests. In responding to the defendant s requests, the plaintiff provided some documents, but advised that one of its servers had crashed and was in the process of being rebuilt. The plaintiff stated that it would supplement its production at a later date. A day prior to the summary judgment hearing in the case, the plaintiff produced the additional s from the rebuilt server. The trial court issued summary judgment in favor of the plaintiff. On appeal, the defendant argued that the trial court abused its discretion in refusing to vacate the summary judgment order in light of "newly discovered evidence, namely the internal messages produced just prior to the summary judgment hearing. The appellate court found that the messages were not newly discovered evidence where there was nothing to suggest that the plaintiff deliberately tried to hide these documents. Dodge, Warren, & Peters Ins. Servs. v. Riley, 130 Cal.Rptr.2d 385 (Cal. Ct. App. 2003). Prior to termination of their employment, the defendants copied and took with them volumes of computerized data maintained in the plaintiff s files and storage media. The plaintiff sued the defendants alleging claims of misappropriation of trade secrets, unfair business practices, breach of fiduciary duty and breach of contract. The appellate court affirmed the trial court s order issuing a preliminary injunction against the defendants, requiring the preservation of electronic evidence and 56

57 ordering them to allow a court-appointed expert to copy the data, recover lost or deleted files, and perform automated searches of the evidence under guidelines agreed to by the parties or established by the court. United States v. Moussaoui, 2003 WL (E.D.Va. Jan. 7, 2003). The defendant claims that the government failed to provide him with information retrieved from various computers used by the defendant. The court held that the government provided the defendant with sufficient information, including: information about the authentication of the computer hard drives, confirmation that the computer evidence had not been contaminated, the timing of the forensic examinations, and the software used to restore a hard drive image. The court further stated that the defense possessed the computer hard drives at issue and had expert resources and subpoena power to conduct any further investigation it deemed necessary. In re Livent, Inc. Noteholders Sec. Litig., 222 F.R.D. 29 (S.D.N.Y. 2003). In a securities litigation, the defendant accounting firm produced approximately 25 pages from the files of a particular individual at issue, in addition to 14 s from other employees. The plaintiffs suspected this production was incomplete, and moved the court for: (1) an order "directing Deloitte to make a thorough search of all its computer systems, servers and other storage devices, back-up tapes, and the individual hard drives of employees who worked on the Livent audits" and (2) an order directing the defendant "to produce all responsive materials found within 30 days, along with a written explanation of all the steps it has taken to find responsive materials." The court denied the plaintiffs request and directed the defendant to produce a written explanation of all steps taken to find responsive . The court directed the parties to consult the Rowe decision and, if unable to reach resolution, to inform the court. In re Amsted Indus., 2002 WL (N.D.Ill. Dec. 17, 2002). In a suit by the plaintiff employees against their employer for breach of fiduciary duty and other wrongs stemming from a hostile takeover with use of employee stock assets, the court considered the plaintiffs various discovery motions, including a motion compelling the defendants to retrieve and documents generated on or after January 1, In response to the plaintiffs discovery requests, the defendants limited its investigation to word searches of its backup tapes and only produced relevant documents generated after January 1, The production did not include . The plaintiffs argued that the defendants' search of electronic documents was inadequate, and that the defendants should have actually searched the hard drive of each individual defendant and each person having access to relevant information. The court ordered the defendants to re-search their backup tapes under a broader subject matter and time period. The court also indicated they should search the in-box, saved, and sent folders of any relevant individual's in the same manner. The court determined the additional searches were not so burdensome or expensive as to require a limiting of the requests. Gambale v. Deutsche Bank, 2002 WL (S.D.N.Y. Nov. 21, 2002). As a step toward resolving several discovery disputes, the Magistrate Judge ordered the defendants to serve an affidavit explaining the steps they have taken to search their paper and electronic files for documents responsive to the plaintiff s discovery requests and outlining the feasibility and cost of retrieving such electronic documents. The Magistrate then stated that the plaintiff must choose between two options for producing the electronic data: (1) follow the protocol set forth in Rowe Entertainment v. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002), with the slight modification set forth in Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL (E.D.La. Feb. 19, 2002), or (2) confer with the defendant and propose a joint protocol. Kormendi v. Computer Associates Int l, Inc., 2002 WL (S.D.N.Y. Oct. 21, 2002). The parties in this employment case jointly wrote the Magistrate, requesting reconsideration and 57

58 clarification of a prior order. The court previously had ordered the defendant to produce all messages mentioning the plaintiff over a one-year time period, with the plaintiff to pay for the cost of the search. In the letter to the Magistrate, the defendant stated that it had already produced the s from persons involved in the suit and had no method to locate and reconstruct s mentioning the plaintiff for the listed period because its document retention policy called for employees to retain s for a period of only thirty days. The Magistrate noted that the plaintiff should seek other means of attaining the sought after s, such as searching the computers of other employees who might have saved the s. The plaintiff must still bear the cost of searching for these s. Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664 (9th Cir. 2002). In a dispute relating to the market conduct of Intel Corp, Advanced filed a complaint with the European Commission, and sought discovery according to practices and rules in the United States under federal law. Adopting a broad interpretation of the scope of discovery rights in cases involving foreign tribunals, the court permitted domestic-style discovery under 28 U.S.C in an investigation conducted by the European Community Directorate. Thompson v. Thompson, 2002 WL (D.N.H. May 30, 2002). The copying of messages from the hard drive of a personal computer does not constitute interception of electronic communications for the purposes of the Electronic Communications Privacy Act of The court reasoned that an interception can only occur during transmission of electronic communication transfers; thus, the acquisition of stored does not qualify as an interception under the ECPA. The Gorgen Co. v. Brecht, 2002 WL (Minn. Ct. App. May 14, 2002). The plaintiff brought suit against former employees for misappropriation of trade secrets. Prior to serving the complaint, the plaintiff obtained a TRO, which prohibited the defendants from destroying or altering electronic documents and provided for expedited discovery of relevant electronic data. The appellate court found that the district court abused its discretion by issuing the TRO and by denying the defendants motion to dissolve it. The appellate court stated, Although the TRO seems reasonable on its face this issue cannot be resolved at this early stage of the litigation without a showing of irreparable harm or without complying with the rules of procedure. Tulip Computers Int l v. Dell Computer Corp., 2002 WL (D.Del. Apr. 30, 2002). On the plaintiff's motion to compel in a patent infringement case, the court stated that [T]he procedure that Tulip has suggested for the discovery of documents seems fair, efficient, and reasonable. The court ordered the defendant to produce the hard disks of certain company executives to the plaintiff s electronic discovery expert for key word searching. After the expert completes the key word search, the plaintiff will give the defendant a list of the s that contain those search terms. The defendant will then produce the s to the plaintiff, subject to its own review for privilege and confidentiality. Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL (E.D. La. Feb. 19, 2002). The court used the eight-factor balancing test set forth in Rowe to determine operating protocols and the cost shifting formula. It placed the burden on the producing party to elect one of two proposed protocols. Rowe Entertainment, Inc. v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002). Denying defendants motion for a protective order insofar as it sought to preclude the discovery of altogether, the court set forth an eight factor balancing test for identifying responsive s while protecting privileged documents. See also Rowe Entertainment, Inc. v. The William Morris Agency, 2002 WL (S.D.N.Y. May 9, 2002). After reanalyzing and reaffirming Judge Francis eight factor balancing test, the court upheld the January 15, 2002 Order that granted defendants motion to shift the costs of production of their communications to the plaintiffs. 58

59 Columbia Communications v. Echostar, 2 Fed.Appx. 360 (4th Cir. 2001). In a contract dispute, the court held that failure of the lessor to turn over certain computer databases during discovery did not justify a judgment for the distributor or a new trial. Perez v. Volvo Car Corp., 247 F.3d 303 (1st Cir. 2001). In a suit under the Racketeer Influenced and Corrupt Organizations Act, internal Volvo s, which could have made a dispositive difference on the issue of Volvo's knowledge of the fraud involved in the suit, were not called to the district court s attention until after the court had issued summary judgment. Volvo claimed these e- mails offered too little, too late. However, the First Circuit disagreed, After all, Volvo did not produce the s to the plaintiffs until January 2000 (the same month that Volvo filed its summary judgment motion)--and then only in Swedish. Given the timing, the sheer volume of documents involved in the case, and the need for translation, fundamental fairness counsels in favor of treating the s as newly-discovered evidence within the purview of Federal Rule of Civil Procedure 59(e). Benton v. Allstate Ins. Co., 2001 WL (C.D. Cal. Feb. 26, 2001). The court refused to grant a continuance on the defendant s summary judgment motion where the plaintiff claimed that he had not had an adequate opportunity to conduct discovery of defendant s computer system. The court concluded that the plaintiff did not show that a further continuance was necessary to prevent irreparable harm or that further discovery will enable him to obtain evidence essential to his opposition to the motion. America Online, Inc. v. Anonymous, 542 S.E.2d 377 (Va. 2001). In a case of first impression, the court refused to allow a corporation to seek information from AOL without revealing its identity. Superior Consultant Co. v. Bailey, 2000 WL (E.D. Mich. Aug. 22, 2000). The court ordered the defendant to create and produce for the plaintiff a backup file of the defendant s laptop computer, and a backup file of any personal computer hard-drive to which the defendant had access. Commonwealth v. Ellis, 1999 WL (Mass. Aug. 27, 1999). The defendants filed a motion to suppress electronic evidence, claiming that the evidence was improperly seized and searched by a computer expert. Among other things, the defendants alleged that the computer expert should have used a keyword search instead of a file-by-file search in order to avoid unnecessarily intruding upon the defendants privacy. The court noted that the expert began the computer investigation with a keyword search but could not properly execute the searches because of the file system and structure. The court stated in computer searches, keyword searches are likely the most efficient types of searches, but unless the computer analyst knows how the data was organized and stored, there will necessarily be trial and error to determine key phrases, words, and places. The court determined that the file-by-file method was reasonable under the circumstances because a keyword search would have been both under and over inclusive. Based on the expert s representation, the court denied the defendant s motion, with a few exceptions, determining that the computer search was constitutional and reasonable. United States v. VISA, 1999 WL (S.D.N.Y. July 7, 1999). In a suit against VISA and MasterCard, the parties agreed to narrow the scope of the archived search, both in terms of the number of employees whose is to be produced and the number of days per month for which is to be produced. The court reserved decision about which party will ultimately bear the cost of producing . Concord Boat v. Brunswick Corp., 1996 WL (E.D.Ark. Dec. 23, 1996). The plaintiffs contend that the defendant s search for and production of relevant information was insufficient because it failed to review all computer documents and . The plaintiffs filed motions to 59

60 compel discovery of electronic information and to prevent further destruction of documents. The defendant asserted that the search was reasonable and submitted that the plaintiffs demands were overly broad and unduly burdensome. The court ordered the parties to have a meeting with counsel and computer experts for both sides, conducting a good faith discussion to see whether agreement can be reached on a procedure to further search the defendant s , the choice of an expert, the procedure for specifying the expert's responsibilities, and allocation of the costs. The court also ordered the defendant to produce a detailed description of the defendant's electronically stored information. Carbon Dioxide Indus. Antitrust Litig., 155 F.R.D. 209 (M.D. Fla. 1993). [D]epositions to identify how data is maintained and to determine what hardware and software is necessary to access the information are preliminary depositions necessary to proceed with merits discovery. Production of Data Procongps, Inc. v. Skypatrol, LLC, No. C (N.D. Cal. Apr. 1, 2013). In this case involving several discovery disputes, the plaintiff argued that the defendants 410,000-page document dump contained a huge number of duplicates and completely irrelevant documents. Further, the plaintiff complained that the documents produced were not identified by category or corresponding request in violation of Fed.R.Civ.P. 34(b)(2)(E)(i). In rebuttal, the defendants argued that they repeatedly requested over several months that [the plaintiff] meet and confer to reach an agreed-upon search protocol; however, because the plaintiff allegedly insisted that the defendants conduct its own searches (the plaintiff introduced conflicting evidence regarding cooperating to narrow the production), the defendants used broadly-crafted reasonable search terms based on the issues and documents requests. The court went on to address the defendants motion to compel which dwelled on allegations that the plaintiff s collection and production effort was not even close to forensically sound as they could not identify any custodians involved in the collection process. The court severed the Gordian Knot with a dose of practicality: [t]he relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The court then ordered the parties to meet and confer regarding all outstanding production issues. In re Coventry Healthcare Inc., 2013 WL (D. Md. Mar. 21, 2013). In this ERISA case, the plaintiffs moved to compel the production of requested electronically stored information (ESI) over the defendants objection that the production would outweigh its potential benefit to the plaintiffs. Specifically, the defendants claimed the cost of processing, hosting and reviewing the hits from the plaintiffs key words (200,000 documents) for privilege and responsiveness would be cost-prohibitive at $388,0-00. Drawing from former Magistrate Judge Grimm s reasoning in Hopson v. Mayor & City Council of Baltimore, the court addressed the more practical approach of lessening the burden of a production by entry of a court order with a clawback provision that protects against a claim of waiver by production of a privileged document. Noting that such a clawback agreement would alleviate costly privilege review for the defendants, the court granted the plaintiffs motion to compel and carved out an option for the defendants to seek a clawback order after conferring with the plaintiffs. Conn. Gen. Life Ins. Co. v. Scheib, 2013 WL (S.D. Cal. Feb. 6, 2013). In this discovery dispute, the defendants objected to the plaintiff s additional requests for production of an estimated 219 gigabytes of ESI, arguing that the cost of production was unduly burdensome. The defendants submitted detailed figures that estimated it would cost $121,000 to index, filter and process the 60

61 additional information sought by the plaintiff exceeding the $119,000 amount in controversy. Finding the figures and documentation provided by the defendants to be persuasive, credible, and reliable, the court held that it would not order [d]efendant to absorb the incredible expense of responding to the additional requests for production, especially when the plaintiffs had already received a significant amount of ESI in relation to other discovery requests. Thus, the court held that the defendants met their burden of proof under Fed. R. Civ. P. 26, and that a cost-benefit analysis strongly suggested that the additional requests for discovery should not be permitted. The court concluded by stating that the plaintiffs should fund the discovery on the 219 GB if they believed the benefit of obtaining the information outweighed the cost. Potts v. Dollar Tree Stores, Inc., 2013 WL (M.D. Tenn. March 20, 2013). In this employment dispute, the defendant filed a motion to compel discovery of the plaintiff s personal computer and any Facebook and/or social media data. The plaintiff explained that she complied with her obligations under Fed. R. Civ. P. 34 by producing all relevant materials and further contended that producing the computer would be unduly burdensome. Additionally, the plaintiff argued that the defendant failed to make a threshold showing that publicly available information on [Facebook] undermines the [p]laintiff s claims under Thompson v. Autoliv ASP, Inc. As a matter of first impression for the Sixth Circuit, the court reviewed persuasive opinions such as Thompkins v. Detroit Metro Airport and found that the defendant does not have a generalized right to rummage at will through information the [p]laintiff has limited from public view. In order to obtain access to such information, the court held that the defendant would have to make a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. The court found the defendant did not make such a showing, and denied access to the plaintiff s social media accounts. With regard to producing the personal computer, the court concluded that relevant ESI might be contained on the device and ordered the parties to agree to a word search of the plaintiff s computer to be conducted by an agreed-upon neutral third party to assess the potential relevance of such information. Keller v. National Farmers Union Property & Cas. Co., 2013 WL (D. Mont. January 2, 2013). In this insurance dispute, the defendant insurance company moved for an order compelling the plaintiffs to respond to discovery requests for the production of their social network content, including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, mylife, Instagram and MeetMe, as well as pre-accident medical records. As to the social network content, plaintiffs objected that the request was overly burdensome and meant to harass... insureds. In response, the defendant cited Romano v. Steelcase, in which the court ruled that social networking content is often relevant in determining whether a plaintiff is actually injured, and that a plaintiff has no legitimate expectation of privacy in those communications. However, the court, citing Tompkins v. Detroit Metropolitan Airport, ruled that the defendant must make a threshold showing that publicly available information on social networking sites undermines the plaintiffs claims, so as to guard against the proverbial fishing expedition. The court determined that the defendant had not made this requisite threshold showing, and is thus not entitled to delve carte blanche into the nonpublic sections of the plaintiffs social networking accounts. Fidelity Nat l Title Ins. Co. v. Captiva Lake Invs., 2012 WL (E.D. Mo. Nov. 16, 2012). In this declaratory judgment action related to insurance policy coverage, the defendant sought sanctions for the plaintiff s insufficient production. After the defendant requested claims and files related to evaluation of coverage under the policy at issue, the plaintiff produced a privilege log that did not include two categories of documents: Major Claims Reports and data maintained in the plaintiff s claims processing system (CPS). Once the defendant requested this data, the plaintiff simply included them in an updated privilege log instead of producing these newly found 61

62 documents. The defendant then filed a motion to compel, which the court granted, ordering the plaintiff to produce the requested data. The plaintiff, however, did not produce all of the requested data, leading to the defendant s motion to strike the plaintiff s pleadings or, in the alternative, to permit forensic examination of the plaintiff s computer system. Citing Fed. R. Civ. P. 37, the court found that there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party to impose sanctions. Reviewing the plaintiff s conduct, the court found that although the proceedings paint an extremely unflattering picture of the plaintiff s data and document retention practices, the plaintiff was continually attempting to locate and produce missing reports. Additionally, the court noted that the plaintiff was in contact with ediscovery specialists to recover necessary information from the CPS. Thus, the court found that the plaintiff s insufficient production was not a willful violation of the order and denied the defendant s motion for sanctions. Freeman v. Dal-Tile Corp., 2012 WL (E.D.N.C. Oct. 2, 2012). In this employment case, the plaintiff brought suit alleging that four specific instances of harassment created a hostile work environment that forced her to resign. Later, the plaintiff amended her complaint to add a claim for civil obstruction of justice based on allegations that the defendant failed to preserve messages and other ESI after it was given a litigation hold notice. After a second round of discovery demands, the plaintiff found the defendant s ESI production deficient, and the parties attempted unsuccessfully to resolve the dispute. The plaintiff moved to compel ESI dating from two months after her resignation to the present, but the defendant objected based on the idea that the ESI could not possibly be relevant, given that the plaintiff had already resigned. In its holding, the court stated that it is reasonable to expect that messages from two months after the plaintiff s resignation could contain relevant evidence. The court further stated that the defendants never even argued that the search for and production of ESI would be burdensome, and thus granted the plaintiff s motion to compel. SEC v. Kovzan, 2012 WL (D. Kan. July 31, 2012). In this discovery dispute, the defendant contested the plaintiff SEC s production of its entire investigative file. Specifically, the defendant sought an order compelling the plaintiff to produce in a request-by-request basis or to note which documents are associated with which discovery request. The plaintiff argued that, as the producing party, Fed.R.Civ.P 34(b)(2)(E)(ii) allows the freedom to produce ESI in the form it is ordinarily maintained. The validity of the plaintiff s argument hinged on whether the entire SEC investigation file could be construed as ESI produced in the form it was ordinarily maintained. The court considered SEC v. Collins Aikman, where the Southern District of New York opined that an SEC investigation was neither routine nor repetitive and therefore could not fall within the scope of the usual course of business. Instead of adopting the Collins Aikman test, however, the court looked at the plain language of the Federal Rules to conclude that any freedom granted by Fed.R.Civ.P. 34(b)(2)(E)(ii) is curtailed by the possibility of a court order under parent Rule 34(b)(2)(E). Because there is no hard and fast production rule, and that merely producing a mass of documents kept in the ordinary business does not automatically satisfy a producing party s obligations, the court ordered the plaintiff to identify the responsive documents based on each individual production request. Chura v. Delmar Gardens of Lenexa, Inc., 2012 WL (D. Kan. Mar. 20, 2012). In this employment discrimination case, the plaintiffs motioned to compel the defendant to search for and produce ESI responsive to several requests for production and provide supplemental answers to the plaintiffs interrogatories. Identifying the defendant as a large corporate body, the plaintiffs asserted that typical production in this type of litigation would include s between managers and witnesses regarding the plaintiffs complaint, reports to and from the corporate office, and investigation notes compiled by human resources. However, the defendant did not produce any 62

63 written complaints, s, or phone logs, arguing instead that it cannot produce what does not exist. Reviewing the defendant s argument, U.S. Magistrate Judge Waxse considered it questionable that none of the defendant s investigating employees exchanged or other correspondence on the matter. Finding insufficient evidence to opine on the defendant s preservation and search methods, the court ordered an evidentiary hearing to gauge the reasonableness of the defendant s conduct. Glazer v. Fireman s Fund Ins. Co., 2012 WL (S.D.N.Y. Apr. 4, 2012). In this employment discrimination case, a third party website that offered online consulting sessions with psychics to the plaintiff moved to quash a subpoena sought by the defendant. While the plaintiff had closed her account with the website and deleted several arguably relevant chat excerpts, the third party contested that if the plaintiff simply opened a new account, she would be able to access any past chat logs including the ones she deleted. Addressing the plaintiff s argument, the court recognized that forcing the third party to divulge the communications might implicate the Stored Communications Act (SCA). However, the court sidestepped any potential SCA issues by analogizing the online consulting communications to social media. The court cited a line of cases that ordered named parties to consent to disclosure or otherwise produce relevant social media information instead of burdening third parties. The court then ordered the plaintiff to create a new account on the website, retrieve the pertinent transcripts and produce non-privileged copies to the defendant. Annex Books, Inc. v. City of Indianapolis, 2012 WL (S.D.Ind. Mar. 14, 2012). In this discovery dispute, the defendant sought to compel the plaintiffs bookkeeping data in a reasonably usable format. Although the plaintiffs hired two forensics experts, spent over $9,000 in services, and purchased QuickBooks Pro, they were unable to convert their data (ordinarily maintained on Platinum) into a format compatible with the defendant s bookkeeping program (QuickBooks). Applying Fed.R.Civ.P. 34(a) and the corresponding advisory committee notes, the court recognized that while Rule 34(a) requires a responding party to take steps in order to translate information into a reasonably usable form, sometimes the form by which ESI is ordinarily maintained may not be reasonably usable by all parties especially when dealing with legacy data like the case at hand. In determining whether to require production, the court reasoned the appropriate analysis required weighing the benefit of the evidence against the burden of translation pursuant to Fed.R.Civ.P. 26(b)(2)(C). While the court found that the bookkeeping information was likely relevant and important, it found the plaintiffs had made a good faith effort to translate the ESI and need not act further. Finding that the defendant had established good cause for the ESI at hand, the court further held that if the defendant wished to proceed attempting to import the data, they could do so on their own dime. In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 2012 WL (S.D. Ohio Jan. 24, 2012). In this products liability litigation, the court addressed the plaintiffs stipulation proposal that the defendant s production of ESI be in native format together with associated metadata. The defendant argued that production in native format invites significant control risks in that such documents can be altered after production... and cannot be Bates numbered, thus incurring significant monitoring costs. Instead, the defendant offered to produce documents in PDF or TIFF format, and to produce specific documents in native format only after the plaintiffs showed relevance. Pursuant to Fed.R.Civ.P. 34(b)(1)(C), the court determined that the plaintiffs may specify production form, regardless of relevance, unless the defendant demonstrated undue burden. Given the relatively small amount of ESI at issue, the court ruled that the defendant s concerns did not demonstrate undue burden. Therefore, the court granted the plaintiffs motion and ordered the defendant to follow plaintiffs production request when made. The 63

64 plaintiffs additionally moved that each party identify a Designated ESI Liaison to respond to requests. Denying that motion, the court concluded that if and when ESI production is required, the parties shall appoint an e-discovery coordinator pursuant to the Default Standard for Discovery of [ESI] adopted by this and other U.S. district courts, but that [t]he ultimate responsibility for complying with e-discovery requests rests on the parties. Indep. Mktg. Group, Inc. v. Keen, 2012 WL (M.D. Fla. Jan. 24, 2012). In this discovery dispute, the defendant brought a motion to compel the production of ESI in a reasonably usable format after the plaintiff produced PDFs that compiled hundreds of documents without any metadata or searchable text. Following production, the defendant identified issues with the document format, to which the plaintiff stated problems with the initial vendor and noted they would quickly process and produce documents with a new vendor. Shortly thereafter, the plaintiffs refused to produce ESI in a different format because the $10,000 production cost was prohibitive. Reviewing the facts, the court found that the plaintiffs appeared to have printed relevant ESI off their server and scanned them back to PDF files. Although the parties did not agree to a specific production format, the court found the plaintiff s method in violation of Fed.R.Civ.P. 34 s requirement that parties produce files as ordinarily maintained and reasonably accessible to the opposition. In response to the plaintiff s cost argument, the court found that the requested files which were readily available on the plaintiff s server were reasonable accessible and did not present an undue burden per Fed.R.Civ.P. 26(b)(2)(B). Accordingly, the court granted the defendant s motion to compel and warned the plaintiffs that future discovery violations might warrant sanctions. I-Med Pharma, Inc. v. Biomatrix, Inc., 2011 WL (D.N.J. Dec. 9, 2011). In this breach of contract litigation, the defendants appealed an order allowing the plaintiff to withhold millions of files obtained in a search of unallocated data, claiming the magistrate judge abused discretion on the matter. According to the parties' stipulation, an expert conducted a 50-phrase keyword search of the plaintiff's computer networks and storage devices that was not limited to particular document custodians, data sets, or relevant time periods. Accordingly, the search produced over 95 million hits 64 million of which were in unallocated space. A magistrate judge found inadequate relevance to justify the burdensome review of the files from the unallocated space and modified the plaintiff's production order to include only active data. Deferring to the magistrate judge's discretion, the district judge found that the parties should have "exercised greater diligence before stipulating to such broad search terms," but nonetheless found it unreasonable to order the costly production of 64 million documents bearing little likelihood of relevance or non-duplicative files. Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 2011 WL (S.D.N.Y. Aug. 18, 2011). In this discovery dispute, the defendants requested production of non-privileged and responsive "missing" attachments. Objecting, the plaintiffs contended the requested attachments were unresponsive and cited their reasonably diligent effort to produce 1.5 million documents in a matter of weeks. Weighing both parties positions, the special master determined it would be unfair to require the defendants to identify all the s that were missing attachments, and recommended the plaintiffs be required to produce attachments to the 126 s already identified by the defendants. Following that production, the defendants could move for further production of attachments. Finally, the special master also recommended the parties meet and confer to address items related to the production. United States v. Universal Health Servs., Inc., 2011 WL (W.D. Va. Aug. 5, 2011). In this federal false claims litigation, the defendants requested production of s contained on backup tapes and the imposition of an adverse inference sanction alleging spoliation. Conceding that records created since 2009 were accessible via their current exchange server, the plaintiffs 64

65 argued that producing s pre-dating 2009 would be unduly burdensome as it would require recreating the old Microsoft Exchange server at an estimated cost of $100,000. The defendants claimed the plaintiffs proffered method of retrieval represented only one option that happened to be the most laborious and time-consuming. Instead, the defendants suggested the data could be recovered in a cost-effective, timely manner by using readily available industry technology. Finding the plaintiffs' own negligence caused the undue burden by failing to issue a timely litigation hold, and that the data was likely to be highly responsive, the court granted the motion and ordered the government to produce the backup tapes to the defendants, with the costs subject to reimbursement by the government. United States v. Universal Health Servs., Inc., 2011 WL (W.D. Va. Aug. 5, 2011). In this federal false claims litigation, the defendants requested production of s contained on backup tapes and the imposition of an adverse inference sanction alleging spoliation. Conceding that records created since 2009 were accessible via their current exchange server, the plaintiffs argued that producing s pre-dating 2009 would be unduly burdensome as it would require recreating the old Microsoft Exchange server at an estimated cost of $100,000. The defendants claimed the plaintiffs proffered method of retrieval represented only one option that happened to be the most laborious and time-consuming. Instead, the defendants suggested the data could be recovered in a cost-effective, timely manner by using readily available industry technology. Finding the plaintiffs' own negligence caused the undue burden by failing to issue a timely litigation hold, and that the data was likely to be highly responsive, the court granted the motion and ordered the government to produce the backup tapes to the defendants, with the costs subject to reimbursement by the government. B & B Hardware, Inc. v. Fastenal Co., 2011 WL (E.D. Ark. May 25, 2011). In this discovery dispute, the plaintiff sought to compel production and requested a hearing to determine what the defendant had done to meet its obligation to produce responsive ESI, forensically image hard drives and conduct a search of 1,182 backup tapes (estimated to cost $84,854,704.90). Characterizing the plaintiff s motion as peremptory, the court determined the plaintiff failed to abide by Local Rule 7.2(g) of the U.S. District Court for the Eastern District of Arkansas which requires attorneys to confer in good faith before filing a motion to compel. Further, the court noted the defendant produced approximately 31,000 documents within the response period, thus fulfilling its production obligations. Admonishing the plaintiff s actions, the court declined to compel discovery or grant a hearing. Regarding the issues of forensic imaging and backup tapes, the court found the defendant sufficiently raised objections on the grounds of undue burden and scope, denied the motion and warned the parties to act less like armed combatants and more like highly skilled professionals going forward. United States v. Universal Health Servs., Inc., 2011 WL (W.D. Va. Aug. 5, 2011). In this federal false claims litigation, the defendants requested production of s contained on backup tapes and the imposition of an adverse inference sanction alleging spoliation. Conceding that records created since 2009 were accessible via their current exchange server, the plaintiffs argued that producing s pre-dating 2009 would be unduly burdensome as it would require recreating the old Microsoft Exchange server at an estimated cost of $100,000. The defendants claimed the plaintiffs proffered method of retrieval represented only one option that happened to be the most laborious and time-consuming. Instead, the defendants suggested the data could be recovered in a cost-effective, timely manner by using readily available industry technology. Finding the plaintiffs' own negligence caused the undue burden by failing to issue a timely litigation hold, and that the data was likely to be highly responsive, the court granted the motion and ordered the 65

66 government to produce the backup tapes to the defendants, with the costs subject to reimbursement by the government. Adams v. AllianceOne, Inc., 2011 WL (S.D. Cal. May 25, 2011). In this class action suit, the plaintiff requested $17, in sanctions arguing the defendant committed discovery abuse by producing over 20 million pages of documents in unsearchable PDFs. In response, the defendant argued a PDF was the most useable format available because data extraction from its third party, proprietary software storage system rendered the data unreadable mush that could become readable only via printing (impractical due to the volume) or PDF conversion. Further, the PDFs could be searched using commercially available software. Finding the plaintiff did not specify a desired format and noting that past production practices do not dictate future requirements absent a party agreement, the court found no basis on which to impose sanctions. The court additionally found the information was usable and searchable, that translating data between formats was permissible under the Fed.R.Civ.P. and that there was insufficient evidence the defendant acted with willful intent. Although the court remained less than pleased with the defendant s past discovery delays, it withdrew its informal recommendation for sanctions and denied the motion. Zimmerman v. Weis Markets, Inc., No. CV (C.P. Northumberland May 19, 2011). In this personal injury litigation, the defendant requested preservation and disclosure of the non-public portions of the plaintiff s Facebook and MySpace pages. Noting that recent photographs and comments on the public portions of the plaintiff s pages appeared to contradict claims of physical and emotional distress, the defendant argued it should have access to relevant information in areas designated as private. The plaintiff countered that allowing access to shielded information would violate his reasonable expectation of privacy. Rejecting the plaintiff s argument, the court noted that no privilege exists in Pennsylvania for non-public social website information and the "paramount ideal" of pursuing truth favors liberal discovery. Further, the court agreed with the rationale in McMillen v. Hummingbird Speedway Inc. and cited Romano v. Steelcase, Inc., which held that an individual who voluntarily posts pictures and information on social websites does so with the intention of sharing, and thus cannot later claim any expectation of privacy, especially because the privacy policies of Facebook and MySpace disclose that any information posted may become publicly available at the user s own risk. Finding a reasonable likelihood that additional relevant information existed on the non-public portions, the court ordered the plaintiff to provide all passwords and user names to the defendant, and preserve all existing information. Thermal Design, Inc. v. Guardian Bldg. Prod., Inc., 2011 WL (E.D. Wis. Apr. 20, 2011). In this discovery dispute, the plaintiff sought discovery of all archived accounts and shared network drives without restriction as to custodian or individual. Having already produced over 1.46 million pages of ESI (91 gigabytes) at a cost of $600,000, the defendants argued the additional discovery estimated to cost $2.5 million for filtering, search and review was not reasonably accessible. Finding the plaintiff made virtually no effort to justify the additional discovery beyond citing the defendants' considerable resources, the court refused to tolerate "fishing expeditions" simply because the party could afford to comply and denied the plaintiff's motion. Bower v. Bower, 2011 WL (D. Mass. Apr. 5, 2011). In this tort litigation relating to the alleged abductions of the plaintiff s minor children, the plaintiff sought to compel Yahoo! and Google to comply with a third party document subpoena and to compel the defendant to consent to the production of s. Agreeing with Yahoo! and Google that the Stored Communications Act (SCA) barred the requested production absent the defendant's consent and finding no exception requiring compliance with a civil subpoena, the court denied the motion to compel. The court cited case law that supported ordering consent as a sanction for failure to comply with a Fed.R.Civ.P

67 document request, however, it found no support to order consent for failure to respond to a motion to compel consent. Further, the court disregarded the plaintiff's argument that the defendant's fugitive status should be sufficient to order consent and distinguished this case from those where an implied agreement has been found in light of affirmative participation in the judicial process. Based on this analysis, the court declined to find anything in the defendant's actions (or fugitive status) from which to imply consent to disclose her information. Benson, M.D. v. Sanford Health, 2011 WL (D.S.D. Mar. 25, 2011). In this discovery dispute, the plaintiff filed a fourth motion to compel seeking production of a single . Asserted that its retention policies and document destruction cycles would have destroyed any such if it ever existed years before the plaintiff s request, the defendant nevertheless attempted to locate and retrieve the . Discrediting the plaintiff's "counterproductive overstatement and half truth," the court determined the plaintiff's "picture of her own 'pure driven snow' innocence and [the defendant's] dastardly evasion" and description of the first three motions were inaccurate. Instead, the court acknowledged the defendant's efforts and characterized the fourth motion as duplicative to an order previously denied. Finding a strong probability that the e- mail no longer existed anywhere on the defendant's laptops, networks, backup tapes or in hard copy, and concluding there was nothing else the defendant could reasonably do, the court denied the motion and awarded attorney fees to the defendant. Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2011 WL (W.D.N.Y. Mar. 21, 2011). In this business litigation, the plaintiff sought disclosure of internal s relating to its breach of contract claim. Opposing the motion, the defendant argued the request was untimely and the information sought was not relevant, responsive or readily accessible. Noting the duty to supplement production continues even after the discovery period closes, the court found the requested s were relevant and responsive to the plaintiff's initial document request. Despite the defendant argument that producing the s would require searching Exchange databases housed on an external 4 terabyte storage array at a cost of $13,000, the court asserted that the defendant had a duty to identify sources of information that were not reasonably accessible in its discovery response and rejected its belated arguments regarding burden. Accordingly, the court determined the defendant's initial production was incomplete and granted the motion to compel. Techsavies, LLC v. WDFA Mktg. Inc., 2011 WL (N.D. Cal. Feb. 23, 2011). In this discovery dispute, the plaintiff requested sanctions alleging the defendant failed to both timely produce documents and respond to an interrogatory. Despite the plaintiff's multiple complaints that the first production of 32,000 documents was incomplete, the defendant did not produce approximately 120,000 additional responsive documents until after discovery closed, claiming it "moved offices and simply forgot about them." Agreeing the defendant was on notice of its inadequate responses, the court found the defendant had an affirmative duty to investigate but failed to do so in a timely manner. Further, the defendant did not seek leave of the court before correcting its production. Concluding the defendant was unable to show its conduct was substantially justified or harmless, the court held sanctions were appropriate; however, the court also noted that the plaintiff contributed to the problems as it never moved to compel discovery. Thus, the court barred the defendant from introducing and relying on any untimely produced documents and ordered the parties to meet and confer regarding this issue. Nat l Day Laborer Org. Network v. United States Immigrations and Customs Enforcement Agency, 2011 WL (S.D.N.Y. Feb. 7, 2011). In this Freedom of Information Act (FOIA) litigation, the plaintiffs sought to obtain records in a usable format from four government agencies that produced electronic text records, s, spreadsheets and paper records in an unsearchable 67

68 PDF format, stripped of all metadata and indiscriminately merged together in one PDF file. Determining the defendants production did not comply with FOIA or Fed.R.Civ.P. 34, Judge Scheindlin remarked that regardless of whether FOIA requests are subject to the same rules governing discovery requests, Rule 34 surely should inform highly experienced litigators as to what is expected of them when making a document production in the twenty-first century. Citing Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security, in addition to three state court decisions, Judge Scheindlin held that certain metadata is intrinsic to the electronic record. Accordingly, the Judge determined that parties may no longer produce a significant collection of static images of ESI without accompanying load files. In addition, metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not readily reproducible. After ordering a detailed protocol for the defendants production and specifying the minimum metadata fields that must be included, the court concluded by commenting that the whole discovery issue could have been avoided through cooperation and communication. Océ N. Am., Inc. v. MCS Servs., Inc., 2011 WL (D. Md. Jan. 20, 2011). In this intellectual property litigation, the plaintiff sought forensic images of flash (or thumb) drives alleged to contain copies of its proprietary software. Pursuant to an agreement among the parties, a neutral third party expert created the forensic images and subsequently destroyed the original drives. Opposing the motion, the defendant claimed the plaintiff requested the drives themselves not the forensic images and that the parties' agreement limited the scope of e-discovery. Rejecting the defendant's arguments, the court noted that parties have a continuing obligation to supplement discovery responses. Further, because the forensic images of the thumb drives contained the exact same information as the original media, the images were discoverable. Finally, the court found the agreement did not express a specific intention to limit discovery and found no compelling reason to deny the plaintiff access to this important information. Moore, II v. Shands Jacksonville Med. Ctr., Inc., 2010 WL (M.D. Fla. Dec. 10, 2010). In this employment discrimination litigation, the plaintiffs moved to compel discovery responses including the reproduction of video surveillance footage. The defendants initially produced DVDs containing the responsive footage; however, the plaintiffs were allegedly unable to view the content without access to a particular type of media software. When informed by the defendants that the necessary software was freely available on the Internet, the plaintiffs claimed they were insulted and that accessing the program was not feasible and would cause undue hardship. Arguing the DVDs were rigged, the plaintiffs sought reproduction. An unsympathetic court noted the plaintiffs failed to specify the format prior to production and did not attempt to confer in good faith to resolve the issue before seeking relief. Accordingly, the court denied the plaintiffs motion as it related to reproduction of the surveillance footage, but ordered production of additional responsive video footage. Susquehanna Commercial Fin. Inc. v. Vascular Res., Inc., 2010 WL (M.D. Pa. Dec. 1, 2010). In this commercial lending dispute, the defendants requested the plaintiff supplement its production, fully explain its discovery efforts and allow access to its ESI. The defendants speculated that the plaintiff failed to produce hundreds if not thousands of pages and argued this failure evidenced either an intentional disregard of discovery obligations or an inadequate effort to locate and identify responsive materials. Unconvinced the plaintiff s search of computers and servers and production of s was adequate, the court directed the plaintiff to undertake further efforts to locate, identify and produce responsive documents. The court also found that an agreement between prior counsel that stipulated all documents would be produced on a disc or in hard copy could not control the defendants ability to discover ESI. Finally, remarking that 68

69 communication about discovery and production format that is crucial to this process appears to have been compromised, the court ordered the parties to meet and confer to reach an agreeable production schedule. Brinckerhoff v. Town of Paradise, 2010 WL (E.D. Cal. Nov. 18, 2010). In this employment discrimination litigation, the parties moved to compel discovery and production, obtain protective orders and impose sanctions. Among its motions to compel, the plaintiff sought production of responsive s in their native format. Although the Federal Rules of Civil Procedure do not require a party to produce s in their native format, the court noted this does not permit the party to produce the information in a form that makes it more difficult or burdensome for the requesting party to use efficiently. The court acknowledged that both parties possess a mutual obligation to discuss electronic discovery at the Rule 26(f) conference and considered the plaintiff s failure to address e-discovery in both the conference and in her production requests. The belated request for native production along with the determination that the plaintiff would not be hard pressed to review the approximately 4,000 pages of s produced, led the court to deny the plaintiff s request with the exception of one document for which the metadata would likely reveal useful information. Admonishing both parties for exhibiting unprofessional conduct, the court denied sanctions. Sofaer Global Hedge Fund v. Brightpoint, Inc., 2010 WL (S.D. Ind. Nov. 12, 2010). In this corporate litigation, the defendants sought to compel production to which the plaintiff objected claiming that producing documents from the French corporation s possession would violate French law, that some of the sought-after documents do not exist and that it should not be required to search for documents in files other than those in possession of its principal. Addressing these arguments, the court found the documents belonging to the wholly-owned French subsidiary to be within the plaintiff s control and cited the lack of arguments given regarding the potential violation of French law in ordering their production. Next, the court determined that the search of the principal s files by the principal himself was not thorough based on the paucity of documents found and ordered the plaintiff to search electronic and paper files of additional employees. Addressing the issue of sanctions, the court held that the scant amount of documents acquired through the plaintiff s search process, the inability to locate highly relevant and responsive documents and the overall resistance to discovery, should have alerted counsel that a more substantial effort must be made to search for and locate responsive documents, and awarded partial attorney fees accordingly. In re Fontainebleau Las Vegas Contract Litig., 2010 WL (S.D. Fla. Oct. 25, 2010). In this discovery dispute, the producing party sought entry of a confidentiality order, arguing it would be impossible for the producing party s attorney to review all of the documents before the deadline. Disagreeing, the court recalled counsel s earlier assurance that running a privilege review on the e- mail server with agreed-upon search terms would take less than a day and found no explanation why an attorney would need to personally examine hundreds of thousands of documents since the producing party previously represented that its e-discovery vendor was prepared to do exactly that. Further, the court found that the producing party s proposal, which would place the burden on the requesting parties to return all of the documents copied off the servers, would risk disclosing attorney work product. Denying the confidentiality order request, the court noted the producing party may seek an extension of production deadlines via a verified motion if more time is needed to produce the privilege log. Radian Asset Assurance, Inc. v. College of the Christian Brothers of New Mexico, 2010 WL (D. N.M. Oct. 22, 2010). In this litigation, the plaintiff objected to a proposed court order that would require the defendants to produce s and other ESI from backup tapes subject to a 69

70 clawback agreement, claiming the defendants should be required to search its own ESI and produce responsive documents not shift the burden and cost to the plaintiff to do so. Disagreeing with the plaintiff s arguments, the court determined the backup tapes were not reasonably accessible and found there to be good cause to issue a protective order due to the significant expense in restoring and searching the tapes in light of their largely irrelevant content. Thus, the court ordered the defendants to produce copies of all ESI from the backup tapes for the plaintiff to review, dismissing the plaintiff s arguments that this constituted a document dump. The court also ordered the defendants to produce user logs for 135 hard drives to determine which one (if any) belonged to a particular defendant. Both the production of the backup tapes and hard drive were subject to a Fed.R.Civ.P. 502(d) order. O Neill v. City of Shoreline, 2010 WL (Wash. Oct. 7, 2010). In this action concerning the Public Records Act (PRA), the plaintiffs sought disclosure of an and its associated metadata that was sent to the deputy mayor alleging improprieties in city zoning decisions. The Court of Appeals determined the was a public record to which the plaintiffs were entitled (along with the metadata) and remanded the case to the trial court. The defendants petitioned for review, which the Supreme Court of Washington granted. Upon review, the court referenced Lake v. City of Phoenix and determined that an electronic version of a record along with its embedded metadata was a public record subject to disclosure. Further, the court found the State Records Management Guidelines did not justify the deletion of s or related metadata that were subject to a pending PRA request and held the plaintiffs were entitled to disclosure of the original and associated metadata. In addition, the court reasoned that the PRA would be drastically undermined if government employees could circumvent it by using their home computers for government business and directed the City to inspect the hard drive of the deputy mayor s computer to attempt recovery of the missing and metadata. Accordingly, the court remanded giving the City the chance to search for the requested metadata, and instructed the trial court to determine whether the City has violated the PRA if the metadata is not found and to decide if a monetary penalty is appropriate. Romero v. Allstate Ins. Co., 2010 WL (E.D. Pa. Oct. 21, 2010). In this remanded employment class action suit, the plaintiffs sought to compel responses to numerous document requests, production of metadata, disclosure of the defendants search methodology and certification of the defendants document retention policies. Following an order from the Third Circuit Court of Appeals, the court granted the motion to compel responses to document requests, noting the requests sought relevant and admissible information. Turning to the production of metadata, the court referenced the Sedona Conference and multiple court decisions and found that the defendants blanket statement of objections failed to show undue burden. As a result, the court ordered production of metadata with respect to documents that have not already been produced, finding the information will provide the plaintiffs with crucial information and permit them to engage in a more meaningful search. The court then denied disclosure of the defendants search methodology, but ordered the parties to meet and confer to reach an agreement on search terms, custodians, date ranges and other essential details. Finally, the court refused to order a certification of the defendants document retention policies absent sufficient evidence of spoliation. Trusz v. UBS Realty Investors LLC, 2010 WL (D. Conn. Sept. 7, 2010). In this employment litigation, both parties sought sanctions, and the plaintiff sought to compel production of electronic documents arguing the defendants engaged in a massive document dump by producing 1.8 million documents without reviewing for relevancy (producing over 4 million documents in total). The defendants contended the production was inevitably massive despite a diligent review because the plaintiff served 208 document requests and would have been smaller if 70

71 the plaintiff had identified a narrower set of search terms. Citing the Sedona Conference s Case for Cooperation, the court found that the issues could have been eliminated or resolved if counsel had conferred about refining search terms and ordered the parties to meet and confer or face the appointment and expense of a special master. The court also denied both requests for sanctions noting several months still existed for the completion of fact discovery in this litigation. Chapman v. Gen. Bd. of Pension and Health Benefits of the United Methodist Church, Inc., 2010 WL (N.D. Ill. July 6, 2010). In this litigation arising from claimed violations of the Americans with Disabilities Act, the plaintiff sought punitive sanctions for discovery noncompliance alleging the defendant engaged in a flagrant violation of both the letter and the spirit of Discovery rules by unreasonably delaying production of electronic copies and accompanying metadata of requested documents previously produced in a hard copy. Denying the request for sanctions, the court affirmed the defendant s argument that no duty existed to also produce electronic copies when the initial request merely sought documents making no mention of digital information. Instead the court stated the fact that the defendant ultimately agreed to do so and did is the occasion not for sanctions, but for some measure of commendation. After disposing of the motion, the court further admonished the plaintiff for prematurely seeking sanctions under Fed.R.Civ.P. 37 in a brief that lacked analysis, was devoid of supporting case law and asked for documents concededly obtained without any court intervention. St. Paul Fire & Marine Ins. Co. v. Schilli Transp. Servs., Inc., 2010 WL (N.D.Ind. June 28, 2010). In this insurance litigation, the plaintiff requested production of physical and electronic evidence arguing the defendant - a corporation dissolved since was required to "continue its corporate existence" to the extent necessary to resolve any pending litigation. The defendant claimed that a more limited discovery form was appropriate given its dissolved status and that the request was unduly burdensome as it would require "hundreds of hours." Finding the defendant "failed to demonstrate any substantially justifiable reason for withholding discovery," the court granted production and ordered the defendant to pay the fees and costs associated with the motion. Takeda Pharm. Co. Ltd. v. Teva Pharm. USA, Inc., 2010 WL (D.Del. June 21, 2010). In this patent litigation, the defendants sought production of electronically stored information for an 18-year period, despite the five-year period previously imposed in the case. The plaintiffs demonstrated that the sought-after ESI was not reasonably accessible and would cost between $1 and $1.5 million for an outside vendor to retrieve the data, not taking into account the cost of review. Despite the burden on the plaintiffs, the court found the information was relevant and potentially unavailable from other sources. The court also considered the "importance of the interests at stake in this litigation" and the significant financial stakes in ordering production of data from the additional 13-year period. Finally, the court ordered the defendants to pay 80 percent of the costs incurred by the plaintiffs if they employed an outside vendor. Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 WL (W.D.Pa. May 24, 2010). In this FLSA collective action, the plaintiffs sought discovery and sanctions based on the defendants' alleged incomplete production and excessive deadline extensions. Despite noting it was "not entirely unsympathetic" to the defendants' difficulties based on the complexity of the litigation, the court found the time for "don t worry, we ll get it to you" had passed, especially given the original discovery deadline of November The court was not impressed with the defendants' statement that they produced "over 21,000 documents" and granted the plaintiffs' production requests where appropriate. The court ordered the parties to meet and confer to discuss the production of ESI, consistent with its rulings that electronic files must be produced in a "searchable" format and the defendants must supplement production by reproducing ESI in native 71

72 format, with metadata, seeking technical expertise and assistance when necessary. Finally, the court denied sanctions, but issued the defendants a "wake-up call" to "tighten up their discovery practices." The court emphatically directed opposing counsel to act reasonably and in good faith, working through "disagreements amicably whenever possible" as the court "has neither the time nor the resources to resolve every discovery agreement that surfaces in this or any other case." Kinetic Concepts, Inc. v. ConvaTec Inc., 2010 WL (M.D.N.C. May 12, 2010). In this patent infringement litigation, the defendants filed a motion to compel alleging the plaintiffs failed to respond to several production requests and deficiently produced some documents. The plaintiffs argued that they did not withhold or refuse to produce the relevant, responsive and non-privileged documents sought. Reviewing the parties communications, the court determined that the plaintiffs often responded to the defendants requests with boilerplate objections including the unilateral claim that all relevant documents were produced pursuant to the requests. The plaintiffs also delayed their responses, agreed to comply with requests at an unstated future time and abruptly amended their reply, leading to the defendants confusion and suspicion. Citing the plaintiffs pattern of apparently calculated ambiguity, the court ordered the plaintiffs to produce all responsive documents, except for the properly recorded privileged documents determined on a good faith basis. The court further ordered the plaintiffs to make the original versions of certain documents available for inspection. Phillip M. Adams & Assocs., LLC v. Fujitsu Ltd., 2010 WL (D.Utah May 10, 2010). In this intellectual property litigation, one of the defendants sought reproduction of documents and e- mails in native format, documents from the plaintiff s previous computers and documents from prior litigation. The plaintiff argued that it never agreed to produce documents in native format, and that producing documents from the old computers would be unduly burdensome and costly. Addressing the first production dispute, the court ordered the plaintiff to reproduce the documents relevant to one production request natively as it failed to object to the format specification. However, no format specification was made in the defendant s second request. As such, the court determined the plaintiff s production of documents per the ordinary course of business was sufficient, and that the burden of reorganizing and labeling the production would likely outweigh the benefit. Turning to the computer issue, the court ordered the plaintiff to produce an inventory of previous computers containing data described in the defendant s request to determine if the created archives for these systems were adequate. Finally, the court ordered the plaintiff to search documents related to a prior litigation matter, producing any document that is responsive, but not privileged. In re Art Harris, 2010 WL (Tex.App. Apr. 22, 2010). In this defamation litigation, the defendant filed a petition for writ of mandamus requesting withdrawal of the trial court s discovery orders. The defendant argued that the trial court abused its discretion by compelling production of electronic media for forensic examination, by refusing to apply applicable state rules regarding treatment of privileged documents and privilege logs, and by appointing a special master. Addressing the defendant s arguments, the court found the trial court acted arbitrarily and without considering the Texas Rules of Civil Procedure by compelling discovery from the defendant without requiring identification of specific requests, by failing to hold a hearing on the defendant s protective order motion, by failing to consider whether privilege applied and in ordering production absent a motion to compel. The court also found that the trial court erred by ordering the defendant to produce his hard drives contrary to the provisions of Rule as discussed in In re Weekley Homes. Finally, the court noted that e-discovery is a common component of modern litigation and does not by presence alone require a special master. Since the case did not require specialized knowledge, the trial court also abused its discretion by appointing a special master. 72

73 Covad Commc ns Co. v. Revonet, Inc., 2010 WL (D.D.C. Mar. 31, 2010). In this ongoing secrets misappropriation litigation, the court considered six of nine discovery motions both parties had filed. In particular, the court addressed the plaintiff s motion to compel production of 35,000 s in native file format including metadata, following the defendant s production of those s as hard-copy printouts. Addressing this motion, the court noted that it was bound by Fed.R.Civ.P. 26(b)(2)(C)(iii), which requires a limit of discovery if the burden or expense of the proposed discovery outweighs its likely benefit and explained that the parties had bigger fish to fry in the interest of judicial expediency. Based on this and the plaintiff s failure to demonstrate a specific need for the metadata, the court held that the production of the hard copies in native format in this stage of the dispute was not necessary and denied the plaintiff s motion. In re Air Cargo Shipping Servs., M.D.L. No (E.D.N.Y. Mar. 29, 2010). In this antitrust litigation, the plaintiffs moved to compel production of documents withheld by the defendant on the grounds that production is prohibited by the French blocking statute. The defendant argued the plaintiffs should be required to obtain the documents pursuant to the Hague Convention procedures. Citing to the Restatement (Third) of Foreign Relations Law of United States, the court ultimately decided the fifth factor the balance of the national interests at play weighed in favor of the plaintiff, since France s relatively weak national interest in prohibiting disclosure... [was] outweighed by the more substantial United States interests. The court also considered the hardship of compliance factor, finding there was little proof provided that the defendant would face prosecution for violating the blocking statute. Finally, the court ordered production of the documents since resorting to the Hague Convention process would cause substantial delay, which the court deemed pointless. Gucci Am., Inc. v. Curveal Fashion, 2010 WL (S.D.N.Y. Mar. 8, 2010). In this trademark infringement litigation, the plaintiffs served a subpoena on the third party United Overseas Bank of New York (UOB NY) for the defendants bank records held in Malaysia, alleging the defendants transferred approximately $900,000 received from the sale of counterfeit goods to the Malaysia account. UOB NY denied disclosure to the plaintiffs arguing that disclosure would violate Malaysian banking secrecy laws. Pursuant to the Restatement (Third) of Foreign Relations Law of the United States 442, the court followed a five-factor test in balancing the United States interest in the foreign production of documents. After considering the factors, the court concluded that the United States interest in fully and fairly adjudicating matters before its courts outweighs Malaysia s interest in protecting the confidentiality of its banking customers records. The court also considered the hardship of compliance on the party or witness from whom discovery is sought, but determined that the prospect of significant hardship and likelihood of prosecution for compliance with discovery in this case was nothing more than mere speculation. Secure Energy, Inc. v. Coal Synthetics, 2010 WL (E.D.Mo. Feb. 17, 2010). In this business dispute, the plaintiffs sought production of electronic engineering drawings in native format with metadata. The plaintiffs argued that the definition of documents in previous discovery requests included ESI, that they were under the impression the defendants agreed to produce the files and that the terms of a proposed joint scheduling plan entitled them to native production. Citing Fed.R.Civ.P. 34, the court determined the defendants were not obligated to produce the drawings in native format since the plaintiffs failed to identify a specific format in their requests. The court also found the plaintiffs motion untimely, since they waited until two months after the discovery and motion to compel deadlines had passed. Finally, the court recognized that expert testimony may be required regarding retrieval and interpretation of the metadata from the drawings and determined the defendants would be prejudiced if the plaintiffs request was granted. Thus, the 73

74 court denied the plaintiffs motion and held the defendants fulfilled discovery obligations by producing the drawings in PDF format. Irwin v. Onondaga County Res. Recovery Agency, A.T., 2010 WL (N.Y.A.D. 4 Dept. Feb. 11, 2010). In this litigation, the plaintiff sought disclosure of all electronically stored photographs and associated metadata. The defendant previously provided digital copies of 1,423 already-published photographs, with two photographs of the plaintiff, but denied production of the remaining photographs, claiming the request was overbroad and constituted an invasion of personal privacy. Pursuant to the Freedom of Information Law statute, the court held that electronically stored photographs and associated metadata must be disclosed by a public agency if properly requested by members of the public. However, unpublished photographs relating to active or ongoing law enforcement investigations, or personal photographs depicting the agency s employees or staff, may be excluded from disclosure. Based on these determinations, the court ordered production of the unpublished photographs and associated metadata that depict the individual but do not depict active or ongoing law enforcement investigations. The court also ordered production of metadata associated with the previously produced photographs. AccessData Corp. v. Alste Tech. GMBH, 2010 WL (D.Utah Jan. 21, 2010). In this international breach of contract action, the plaintiff, a U.S. company, requested a reproduction of previously produced discovery in native format. The defendant, a German company, argued that compliance with the discovery requests would violate the German Data Protection Act (GDPA), subjecting the company to civil and criminal penalties under a German blocking statute. The defendant also claimed that its previous electronic production was in a readily usable form and reproduction would be unnecessarily burdensome. Reviewing the GDPA, the court found nothing that barred discovery of personal information provided customer consent was obtained, and even if disclosure was prohibited under the GDPA, the U.S. Supreme Court has held that blocking statutes do not deprive U.S. courts of the power to compel production from a foreign party subject to its jurisdiction. See Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522 (1987). Addressing the production format dispute, the court determined that scanned PDF images are not readily usable as required by Fed.R.Civ.P. 26(b)(2)(E)(ii) and ordered the defendant to reproduce the requested documents in native form or in an electronically generated PDF format. Rodriguez-Torres v. Gov t Dev. Bank of Puerto Rico, 2010 WL (D.Puerto Rico Jan. 20, 2010). In this discrimination litigation, the plaintiffs sought sanctions and production of electronically stored information. The plaintiffs argued that the requested ESI, unlike hard copy documents, contained relevant information pertaining to authenticity, reliability and chain of custody in the form of native format files and metadata. In opposing these motions, the defendants claimed the ESI request was overbroad and would produce thousands of nonresponsive, confidential and privileged documents. Following submission of an independent report approximating the ESI production cost to be $35,000, the court held that under Fed.R.Civ.P. 26(b)(2), $35,000 [was] too high of a cost for the production of the requested ESI in this type of action and determined the ESI was not reasonably accessible. Furthermore, the court found the plaintiffs argument that s are more likely to lead to inappropriate comments was not sufficient to demonstrate good cause. Rather, the court determined the plaintiffs request [was] merely a fishing expedition, which is contrary to the point of discovery. Bennett v. Martin, II, 2009 WL (Ohio App. 10 Dist. Nov. 24, 2009). In this employment dispute, the defendants appealed the trial court's judgment requiring production of forensic copies of their computer hard drives to the plaintiff. The trial court concluded that the forensic imaging was a reasonable solution given defendants consistent intransigence to providing discovery materials. 74

75 On appeal, the court noted privacy and confidentiality concerns must be weighed, but the "scales tip in favor" of compelling forensic imaging when the requesting party can demonstrate discovery failures or discrepancies. The court found the defendants engaged in outright defiance of court orders and "adopted a lackadaisical and dilatory approach to providing discovery." Based on the defendants' misrepresentations, willful disregard of discovery rules and history of noncompliance with court-ordered discovery requests, the court determined the trial court did not abuse its discretion in ordering production of forensic copies. Cenveo Corp. v. S. Graphic Sys., 2009 WL (D. Minn. Nov. 18, 2009). In this discovery dispute, the defendants filed an amended motion to compel disclosure following the plaintiff's failure to produce electronic files in native format. The plaintiff argued that its production of the documents in PDF format fulfilled Fed.R.Civ.P. 34(b)'s "reasonably usable" requirement because the defendants failed to define "native format." Citing numerous cases, the court found that "native format" is not an ambiguous term. Although some native format production requests may be "overbroad and unduly burdensome," the responding party must object and specify the alternative form it intends to use. Because the plaintiff failed to make an objection, the court granted the defendants' motion and ordered the plaintiff to reproduce electronic documents in native form. Lake v. City of Phoenix, 2009 WL (Ariz. Oct. 29, 2009). In this employment discrimination claim, the plaintiff appealed the appellate court's ruling that metadata is not considered a public record. The plaintiff sought production of electronic public records, including embedded metadata, after suspecting hard copies produced by the defendants were backdated. The Supreme Court of Arizona found the metadata to be a part of the underlying electronic document that could not stand on its own. As a result of this analysis, the court found that any embedded metadata is part of the electronic public record and is subject to disclosure. The court noted that this decision would be unlikely to cause the administrative nightmare the city prophesied because properly responding to a request for metadata would only require producing a copy of the electronic record in native format. Wixon v. Wyndham Resort Dev. Corp., 2009 WL (N.D. Cal. Sept. 21, 2009). In this litigation, the parties filed several motions regarding the special master's report. The report found the defendants' violation of a previous production agreement was harmless but still held the defendants responsible for 75 percent of the fees related to the special master proceeding. In particular, the plaintiffs objected to the special master's finding that the defendants' noncompliant production was harmless. Addressing the timeliness of the production, the court upheld the report with respect to 47 of the documents because they did not contain any keywords selected by the plaintiffs. However, the court rejected the portion of the report that pertained to the defendants' failure to produce documents stored on a "shared" directory in a timely manner, noting the defendants should have noticed a flaw in the custodian-based search when a group of potentially relevant documents had no custodian. Based on this failure, the court issued sanctions, which included requiring the defendants to bear expenses incurred by the plaintiffs in preparing the motion to strike and the full cost of the special master's fees. Covad Commc'ns. Co. v. Revonet, Inc., 2009 WL (D.D.C. Aug. 25, 2009). In this ongoing trade secrets misappropriation litigation, the plaintiff sought compliance with the court's December 2008 order granting a motion to compel discovery. See Covad Comm. Co. v. Revonet, Inc., 2008 WL (D.D.C. Dec. 24, 2008). The plaintiff argued production was incomplete, the production format was noncompliant and that a discrepancy existed between certain s produced in both native format and hard copy. The court first deferred addressing the production issue until the results of a forensic search of relevant electronically stored information were discussed at a later hearing. Turning to the discrepancy, the court ordered the defendant to 75

76 produce all missing s in native format. Regarding the remaining production disputes, the court noted the parties were working to resolve the issues and ordered the defendant to answer whether the documents were either produced in native format or if they would be produced at all. Finally, the court expressed displeasure with data downgrading stating, "taking an electronic document... printing it, cutting it up, and telling one's opponent to paste it back together again, when the electronic document can be produced with a keystroke, is madness." Ultimately, the court stayed action on the motion pending the defendant's responses to the questions posed. Spieker v. Quest Cherokee, LLC, 2009 WL (D. Kan. July 21, 2009). In this dispute over royalty payments, the plaintiffs renewed their motion to compel production of electronically stored information, addressing relevance, cost and accessibility. Previously the court recommended the parties consider conducting searches using the defendant's software and in-house IT staff and Rule 502 to minimize expenses of a detailed privileged review. The defendant argued the software was untested and that in-house IT staff had no experience producing ESI. Addressing relevance, the court determined the plaintiffs' arguments demonstrated that the requested ESI was relevant to class certification issues and that the defendant failed to timely oppose the requested discovery. Finding the defendant's arguments regarding the court's previous recommendations unpersuasive, the court noted it was not aware of any case where a party was excused from producing discovery because it had not been previously asked to do so. The court also found the defendant's estimate of $250,000 for a privilege review "greatly exaggerated" and found the defendant failed to prove the data were not reasonably accessible. Finally, the court held the defendant did not show the discovery was duplicative or that the information could be more efficiently obtained through depositions, and therefore granted the plaintiffs' motion to compel. United States v. Weaver, 2009 WL (C.D. Ill. July 15, 2009). In this unlawful materials prosecution, the Government subpoenaed the Internet service provider (ISP) seeking the contents of electronic communications, including previously opened or sent that belonged to the defendant. After the ISP failed to produce s that had been stored for fewer than 181 days, the Government moved to compel production of the s' content. The ISP argued the information sought required a warrant. Analyzing the issue using the Stored Communications Act (SCA), the court determined the ISP must comply with the Government's subpoena if the s are held or maintained solely to provide the customer storage or computer processing services. The court also determined that previously opened s stored by the ISP for web-based systems as distinguished from other systems are not in "electronic storage," which is defined by the Wiretap Act as storage incidental to electronic transmission and for the purposes of backup protection of the . Based on this finding, the court ordered the ISP to comply fully with the Government's subpoena. Sungjin Fo-Ma, Inc. v. Chainworks, Inc., 2009 WL (E.D.Mich. July 8, 2009). In this contract dispute, the defendant moved to compel responses to interrogatories. In regard to several of the disputed interrogatories, the plaintiff had produced English and nontranslated Korean language documents under Fed.R.Civ.P. 33, which provides the option to produce business records in response to an interrogatory provided the burden of ascertaining the answer will be substantially the same for either party. The court held that the plaintiff's failure to specify which of the disclosed documents are responsive to which interrogatories does not satisfy Rule 33's specificity requirement. Moreover, the court held that the burden of ascertaining the answers to the interrogatories was not substantially similar for the parties, noting that the plaintiff can readily refer to its documents which it should be familiar with and extract the information necessary to provide an English language answer to the defendant's interrogatories while the translation burden would be great on the defendant. 76

77 Flying J Inc. v. Pilot Travel Ctrs. LLC, 2009 WL (D. Utah June 25, 2009). In this litigation, the defendants filed a motion to compel production of the plaintiffs credit card transaction database and s responsive to 28 new search terms. While the plaintiffs were initially willing to comply with the transaction database request, they conditioned production seeking a comparable database from the defendants and restriction of database use from other cases where the plaintiffs are not a party. Denying the plaintiffs arguments, the court determined the production of a comparable database and restricting the plaintiffs database were not issues for the court to determine in the present motion. The court also found the plaintiffs claims that production would be overly burdensome unpersuasive, determining the database to be relevant and accessible. Regarding the additional search terms request, the court again found the plaintiffs arguments unpersuasive, holding that the defendants' request was timely made and was not overly burdensome as the terms were likely to produce relevant material. However, the court ordered the defendants to justify each of the chosen additional terms. Quinstreet, Inc. v. Ferguson, 2009 WL (W.D. Wash. June 22, 2009). In this defamation and interference with contractual relations litigation, the plaintiff moved to compel production of electronically stored information in a reasonably usable format. In response to the plaintiff s request for all documents and communications supporting the defendant s claim and certain communications, the defendant provided the plaintiff with an Internet link. The plaintiff asserted the link contained more than 7,000 pages of raw code listing s messages, and that it was impossible to separate one from another or to know which s were responsive to which requests. Finding that the s were not produced in a reasonably usable format and that the defendant s lack of cooperation did not help the parties to reach the merits of the case, the court determined the defendant s behavior was the kind that the Federal Rules of Civil Procedure specifically caution against. Accordingly, the court ordered the defendant to produce the s in a readable format, number them individually and indicate which s respond to the plaintiff s specific requests for production. Kilpatrick v. Breg, Inc., 2009 WL (S.D. Fla. June 22, 2009). In this medical tort action, the plaintiff moved to compel discovery, asserting that recently discovered s and purported irregularities in the defendant s production warranted additional discovery. The defendant argued that any additional s were in backup storage and not reasonably accessible. While the court recognized that there may be responsive documents that had not been produced, it questioned the relevance of the potential evidence and noted that the eleventh hour timing of the request two weeks before trial made it impossible to complete the searches before the start of trial and might interfere with the defendant s trial preparations. Accordingly, the court granted the plaintiff limited discovery, holding the plaintiff may hire an outside vendor at its own expense to search at most five of the defendant s backup tapes; the search would contain a limited number of search terms; the search would include the records of seven key employees; and the results would be subject to a confidentiality agreement. Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 WL (E.D. Mich. June 17, 2009). In this contract dispute, the defendant moved to compel the plaintiff to organize the data it produced into the 28 specific categories of the document production request. The plaintiff had produced more than 270,000 pages of documents in the order that they were found on the hard drive of each document custodian along with two indices to aid in interpreting and sorting the documents. The defendant asserted that the plaintiff s production required it to manually open and review each file and that the plaintiff had given each file innocuous names in order to frustrate the defendant s review. Finding the plaintiff had produced the documents as they were kept in the ordinary course of business, the court determined there was no indication that the documents or 77

78 file names were modified by the plaintiff. Accordingly, the court found the plaintiff s production satisfied Fed.R.Civ.P. 34 and denied the defendant s motion, noting that to require more would impose an unfair burden on the producing party. Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL (E.D. Wis. June 10, 2009). In this dispute involving an alleged breach of an oral agreement, the plaintiff sought access to five DVDs containing the defendant s s and other ESI that pertained to three specified search terms from the five-year period in which the parties did business and beyond. The defendant argued that the DVDs contained privileged material and that the costs were unduly burdensome given the narrow issues remaining. The plaintiff countered that the cost of attorney review for privileged material could be diminished through a claw back policy and the use of targeted keyword searches. Denying the plaintiff s request, the court determined production would be unduly burdensome as it would contain approximately 650,000 to 975,000 pages of material responsive to the plaintiff s search terms. However, the court ordered the defendant to conduct a search of the DVDs using terms reasonably likely to locate relevant information in response to the plaintiff s previous production request. Finally, the court denied the plaintiff s request for native format production upholding the agreement reached at the Fed.R.Civ.P. 26(f) conference that allowed the defendant to choose the format depending on cost-effectiveness, because metadata was not material to the dispute. In re Zurn Pex Plumbing Prods. Liab. Litig., 2009 WL (D. Minn. June 5, 2009). In this property damage litigation, the plaintiffs requested a search using 26 keywords of the accounts belonging to the defendants employees who had received litigation hold notices, and also requested a search of two shared drives and DVDs. The defendants argued that the information was not necessary for the plaintiffs class certification and that the requested production would be overly broad and costly as it would consist of nearly 27 million pages, take approximately 17 weeks and cost $1,150,000 to process. Using its own calculation, the court determined the production would consist of roughly 3.6 million pages and found the defendants attorney s affidavit regarding burden unpersuasive. The court did recognize the high burden imposed by the proposed search terms and limited the search to 14 specific terms based on the likelihood they would produce relevant information. The court allowed the parties to decide on a different set of search terms and reserved the defendant s right to renew its objection if the production proved to be too costly or overly burdensome. Feig v. Apple Org., Inc., 2009 WL (S.D.Fla. May 29, 2009). In this wrongful termination litigation, the plaintiff sought production of the defendant's communications, including s to and from the plaintiff. The defendant claimed that production of employee s referencing the plaintiff was burdensome and would produce irrelevant documents. The defendant also argued that its server was shut down when it went out of business and that if the employee accounts were recreated, they would be impossible to search by keyword. Rejecting the defendant's irrelevancy argument, the court found that s sent by the plaintiff's co-workers could be reasonably calculated to lead to admissible evidence. Thus, the court ordered an electronic search of the defendant's server data. The court noted that if a keyword search proved impossible, the defendant could seek a protective order provided it had support from a computer forensic expert. Omnicare, Inc. v. Mariner Health Care Mgmt. Co., 2009 WL (Del.Ch. May 29, 2009). In this breach of contract litigation, the plaintiff moved to compel restoration and production of s contained on backup tapes at the defendant's expense and to comply with the terms of a nonexecuted e-discovery stipulation regarding search terms. The defendant's s were stored on backup tapes pursuant to an internal data retention policy. The court denied the plaintiff's motion to compel backup tape restoration and to shift costs to the defendant, finding that data stored on 78

79 backup tapes are not necessarily non-reasonably accessible and that the defendant had not adequately demonstrated that the s were not reasonably accessible. However, the court was not convinced that relevant data would be retrieved from restoration of the backup tapes. Accordingly, the court ordered production from the defendant's active data stores in order to assess the likelihood of finding relevant data on the backup tapes, noting that it found no impropriety in the defendant's data retention policy. Turning to the search term dispute, the court declined to resolve the issue as it had not been adequately informed about the dispute and lacked a sufficient basis to resolve the parties' impasse. The court noted the search term dispute may best be resolved by "a neutral third party with recognized expertise in searching complex databases. Covad Commc'ns. Co. v. Revonet Inc., 2009 WL (D.D.C. May 27, 2009). In this ongoing trade secrets misappropriation litigation, the plaintiff sought forensic images of the defendant's drives and computers as well as forensic searches of its database and servers. The defendant argued that its servers were too fragile for forensic images and that imaging constituted an undue burden. The defendant also objected to the forensic search of its servers, claiming it may reveal information that the defendant is obliged by contract to keep confidential. Disregarding the defendant's arguments, the court granted the plaintiff's request for forensic imaging, finding the imaging would not stress the servers any more than day-to-day use. The court also ordered the forensic search of the defendant's servers, stating that no alternative way existed and that any confidential material could be safeguarded by a protective order. Regarding the servers, the court determined insufficient authority existed to conclude ESI deficiency allegations automatically warranted forensic searches. The court reserved decision on whether forensic examination was appropriate until the plaintiff's expert's report was submitted. The court also ordered a comparison between servers to determine what data existed on non-operational servers that did not exist on the remaining operational one. Linde v. Arab Bank, 2009 WL (E.D.N.Y. May 22, 2009). In this case arising out of the Anti-Terrorism Act and the Alien Tort Claims Act, the defendant sought production of documents from three non-parties. The defendant first sought production of documents from Israel Discount Bank New York (IDBNY) held in Israel by IDBNY's parent company Israel Discount Bank (IDB). The defendant also sought production of documents from Bank Hapoalim, which objected to production citing various Israeli laws including laws against self-incrimination. Citing IDB's insignificant relationship to the litigation and that IDBNY was not a "mere department" of IDB, the court refused to allow jurisdictional discovery of documents held by IDB. Turning to the second request, the court rejected the non-party's claims of self-incrimination and commercial secrets laws violations but felt the other legal arguments raised constituted "prohibitions on disclosure that raise a true conflict between United States discovery rules and Israeli confidentiality laws." The court considered five factors contained within the 442 of the Restatement (Third) of the Foreign Relations Law of the United States: the importance of the investigation of the documents, the specificity of the request, whether the information originated in the United States, the availability of alternative means of securing the information, and the extent to which noncompliance would undermine American interests or compliance would undermine the interests of the state in which the information is located. Noting all factors, except for the specificity requirement, weighed in favor of the non-party, the court denied discovery of the materials protected by Israeli confidentiality laws but ordered production of the remaining materials. Ford Motor Co. v. Edgewood Properties, Inc., 2009 WL (D.N.J. May 19, 2009). In this environmental litigation, the defendant moved for re-production in native format of the plaintiffs' entire ESI production previously produced in TIFF format and for a keyword search by a forensic expert to confirm the adequacy of the plaintiffs' manual document collection process. The plaintiffs 79

80 had demanded native production in their initial document request and argued the keyword search was appropriate to confirm the adequacy of the defendant's collection, as certain documents were noticeably absent from production. The court denied the defendant's motion for re-production, finding the defendant waived its objection to production format by failing to make a timely objection; the defendant waited eight months to first object to the requested production format and an additional two months before bringing the matter to the court's attention. Turning to the second motion, the court found that the defendant had not made a colorable showing that documents had been withheld because of inadequate collection. The court accordingly held that it would not grant the burdensome discovery requested based on "nefarious speculation" of missing documents this "late in the game." Robert v. Board of County Comm'rs of Brown County, Kan., 2009 WL (D.Kan. May 14, 2009). In this employment litigation, the plaintiff moved to compel production of a single . The plaintiff argued the court should order a forensic search for the by an outside expert at the defendants' expense. The defendants had offered to allow the plaintiff to conduct a forensic search at her own expensive but the plaintiff rebuffed the offer, citing insufficient resources. The defendants asserted they had been unable to recover the and additional searches were futile because the hard drive had been irreparably damaged. The court denied the motion and refused to shift the costs, finding no evidence of bad faith by the defendants. The court further rejected the plaintiff's alternative request that the defendants contact their provider to acquire the message, reasoning the defendants are only obligated to produce documents in their possession or control. Capitol Records, Inc. v. Alaujan, 2009 WL (D.Mass. May 6, 2009). In this copyright infringement case, the defendant moved for a protective order to prevent the mirror imaging of two computers. The defendant argued the discovery was overbroad, an invasion of privacy and violated attorney-client privilege. The plaintiffs sought inspection of the computers to determine whether they were used for file sharing. The court granted the protective order and denied imaging with regard to one of the computers that was barely addressed by the plaintiffs in their response to the defendant's motion. The court allowed imaging of the second computer subject to a protective order whereby the plaintiffs would select a computer forensic expert to examine relevant, nonprivileged data on the computer, citing the centrality of the second computer to the litigation alongside the defendant's substantial privacy concerns. The court ordered the expert would provide a report describing any relevant files to the defendant's counsel, who would have five days to lodge any objection before disclosing the report to the plaintiffs. Henderson v. U.S. Bank, 2009 WL (E.D.Wis. Apr. 29, 2009). In this confidential information misappropriation suit, the defendant sought production of electronic devices from the counter-defendant. The counter-defendant objected to providing direct access to their electronic devices and argued the defendant's request was the equivalent of requesting all of their filing cabinets. Finding the defendant's request for direct access premature as the counter-defendant had not had the opportunity to search their electronic devices, the court denied the motion to compel; however, the court ordered the counter-defendant to perform a search and disclose all responsive documents. Asarco, Inc. v. United States Envtl. Prot. Agency, 2009 WL (D.D.C. Apr. 28, 2009). In this environmental litigation, the plaintiff filed a motion to take discovery. The plaintiff contended that the defendant's keyword search was conducted in bad faith, as evidenced by the fact it used only one search term. Finding the plaintiff's argument persuasive, the court ordered an additional keyword search utilizing four additional key terms. Notably, the court stated that "keyword searches are no longer the favored methodology." The court concluded by recommending summary 80

81 judgment on the merits in favor of the defendant after the second search is completed, determining that there is no genuine issue of material fact whether additional defendant data exist. In re the Account of Tamer, 2009 WL (N.Y.Sur. Apr. 20, 2009). In this contested accounting of a revocable trust, the objectant sought authorization to produce approximately 6,000 documents electronically on CD-ROMs and DVDs, while the trustees filed a cross-motion seeking paper production. Noting the relevant state statute neither authorizes nor prohibits electronic production, the court stated, "It is implicit that where a party seeks electronic discovery, the responding party will produce the information sought by some form of electronic means." Accordingly, the court held the objectant may produce documents electronically, provided the production is accompanied by an index identifying each document's file location and responsiveness to a discovery demand. The court concluded that the index would prevent the imposition of an undue burden on the trustees who would otherwise need to read through 6,000 documents. Newman v. Borders, Inc., 2009 WL (D.D.C. Apr. 6, 2009). In this racial discrimination litigation, the plaintiff requested an additional Fed.R.Civ.P. 30(b)(6) deposition seeking information about the defendant's retention policy. Frustrated with the high costs and time spent on discovery that the court determined "will dwarf the potential recovery," the court denied the plaintiff's request and ordered the submission of an affidavit after determining a party's document retention policy was discoverable. The affidavit was to address the defendant's systems, deletion policies and search efforts. William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL (S.D.N.Y. Mar. 19, 2009). In this multi-million dollar construction litigation, a non-party agreed to produce electronic documents but objected to the search terms both parties proposed. The court issued a "wake-up call" to attorneys about the need to effectively design search terms used in e-discovery. Citing this as the "latest example of lawyers designing keyword searches in the dark, by the seat of the pants," the court referenced a series of recent decisions (Victor Stanley, Inc. v. Creative Pipe, Inc.; United States v. O'Keefe; Equity Analytics, LLC v. Lundin; and In re Seroquel Products Liabilitiy Litig.) as guidance for searching. The court also endorsed the "Cooperation Proclamation" from the Sedona Conference and noted that cooperation and transparency in all aspects of preservation and production of ESI is a requirement. Finally, the court stated that counsel must carefully craft appropriate keyword searches with input from pertinent custodians, and concluded by stating, "[I]t is time that the Bar even those lawyers who did not come of age in the computer era understand this." White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc., 2009 WL (D.Kan. Mar. 18, 2009). In this ongoing wrongful termination litigation, the plaintiff sought reproduction of electronic and native copies of s with attachments, the mailboxes that sent or received the s, and mirror images of hard drives that created or modified the attachments. The defendants opposed the motion arguing they substantially fulfilled their discovery obligations and that further production was overbroad and irrelevant. Finding native and electronic copies of the s and attachments to be relevant in explaining the discrepancies in creation dates identified by the plaintiff's computer forensic expert, the court ordered their production. The court also ordered production of Outlook mailboxes following a conference between the parties and their experts to agree on a production process. Finally, the court allowed access to the hard drives related to two s, but ordered the parties to confer regarding the location of information relating to the third 's creation. Anthropologie, Inc. v. Forever 21, Inc., 2009 WL (S.D.N.Y. Mar. 13, 2009). In this copyright infringement litigation, the plaintiff sought production of electronic documents and 81

82 permission to appoint an expert to copy and inspect the defendants' hard drives. The defendants claimed the requested documents did not exist, but nonetheless provided summaries of the information for "settlement purposes only." Finding it "virtually inconceivable" that the defendants did not retain the data requested, given the scale of the defendants' business, the court determined that the defendants' efforts reflected a "refusal to comply with even the minimal requirements of the governing discovery rules." The court ordered production of the data that was used to create the summaries and all documents that pertained to the plaintiff's request, but delayed consideration of the hard drive copying request until after production. Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL (M.D.Fla. Mar. 4, 2009). In this ongoing insurance dispute, the defendants sought production of electronically stored information in native format with metadata and sanctions for alleged non-compliance with Fed.R.Civ.P. 34 and a prior court order. Prior to this fifth discovery order, the plaintiffs produced the requested evidence as TIFF images without metadata despite the defendants' original production request that explicitly sought native format with metadata. In May 2008, an attorney for the plaintiffs concocted a false explanation for how the ESI was collected; however, days before a hearing, plaintiffs' counsel disclosed that the documents had been converted into TIFF images using a program that selectively excluded metadata. After the defendants provided expert testimony regarding the production, the plaintiffs' counsel admitted metadata existed. Based on several more examples of gamesmanship, the court found that if the plaintiffs (and their counsel) believed the production format was substantially justified, they would not have concealed information and made material misrepresentations. The court ordered the plaintiffs to bear all costs related to the production of a copy of its database (excluding privileged information), which included purchasing any necessary software and hiring professionals. Additionally, the court sanctioned a lead plaintiff attorney, ordering him to pay reasonable attorneys' fees, costs and expenses incurred by the defendants and ordered another plaintiff attorney to show cause why he should not be personally sanctioned. The law firm was also found responsible for the discovery misconduct and was "jointly and severally liable" with the lead attorney to pay the defendants' expenses. Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL (E.D.Tex. Feb. 19, 2009). In this patent infringement litigation, the court considered whether the defendant should be ordered to perform the OCR process on TIFF formatted documents prior to production. The defendant estimated the total cost of OCR to exceed $200,000 and argued for cost-shifting. The plaintiff argued that the defendant s estimate was unsupported and the cost would be closer to three cents per page. Agreeing with the plaintiff, the court ordered the defendant to perform the OCR process. The court determined OCR was not unreasonable or burdensome as it was likely to streamline the discovery process and reduce the chance either party would hide relevant information in a mountain of difficult-to-search documents. Focusing on the potential relevancy of the information sought, the court found the seven Zubulake cost-shifting factors did not favor cost shifting. In re Classicstar Mare Lease Litig., 2009 WL (E.D.Ky. Feb. 2, 2009). In this litigation, the defendant moved for a protective order after the plaintiffs sought reproduction of financial documents in native format. Previously, the defendant produced 273,000 pages in TIFF format and claimed that reproduction in native format would be extremely difficult and burdensome as some information would need to be redacted and older data could be corrupted. The defendant also argued the first production was in a reasonably usable format in compliance with Fed.R.Civ.P 34(b). However, the plaintiffs argued native format would save them hundreds of hours and make the data much more usable as it was complex information and extremely reliant on the reporting features within the software. Citing an exchange between the parties in which the defendant agreed to produce material in native format if the plaintiff purchased the software needed to review 82

83 the documents, the court ordered the defendant to reproduce the data in native format. The court shifted the reasonable cost of copying and delivering the second production to the plaintiff as the defendant had complied with its obligations during the first production. Viacom Int l, Inc. v. YouTube, Inc., 2009 WL (N.D.Cal. Jan. 14, 2009). In this ongoing copyright infringement litigation, the defendants sought documents from a third party via a subpoena duces tecum. (The third party was hired by the plaintiffs to monitor the defendant s website for infringing materials.) The subpoena contained thirteen document requests for documents relating to the third party s relationship with the plaintiffs and its actions with regard to monitoring and identifying infringing materials. The third party objected to the subpoena, arguing it was overly broad and imposed an undue burden. Finding the information sought to be relevant and the economic burden to be lessened due to the plaintiffs reimbursement of legal expenses, the court overruled the third party s objections and ordered compliance with the subpoena. Additionally, the court ordered the third party to provide privilege logs and an affidavit outlining the response methodology used. SEC v. Collins & Aikman Corp., 2009 WL (S.D.N.Y. Jan. 13, 2009). In this securities fraud litigation, the defendant objected to the SEC s production of 1.7 million documents maintained in thirty-six separate databases. The defendant asserted the SEC produced a document dump of unorganized documents and failed to perform adequate searches for s. The SEC argued the production format was in accordance with how the documents were maintained in the usual course of business and that nearly all responsive s would be privileged, protected or nonsubstantive. Rejecting the SEC s arguments, District Judge Shira A. Scheindlin found that Fed.R.Civ.P. 34 s usual course of business requirement for production requires the documents to be organized and therefore ordered re-production with documents responding specifically to defendant s requests. Furthermore, as s are inherently searchable, the court found the SEC s blanket refusal to produce any of them to be unacceptable. Accordingly, the court ordered the parties to meet to resolve the scope and design of a search with respect to s. The court noted that a government agency which initiates civil litigation must generally follow the same discovery rules that govern private parties. Corinthian Mortgage Corp. v. Choicepoint Precision Mktg., LLC, 2009 WL (E.D.Va. Jan. 5, 2009). In this contract dispute, the prevailing defendant moved for attorneys fees, including fees for document review and production. The defendant argued its time spent on discovery was reasonable because: (1) more than 2.6 million document pages were reviewed in order to produce 1.2 million pages; (2) it took extra care to avoid spoliation; and (3) its review of the plaintiff s documents was hindered by the plaintiff s disorganized production. The plaintiff argued the claimed attorneys fees were excessive and that it produced documents electronically as they were maintained in the course of business. Finding the time spent on discovery excessively high, the court reduced the total fee awarded. The court noted that the plaintiff should not be charged for the defendant s inefficiencies in document review and production. Kingsway Fin. Serv s, Inc. v. Pricewaterhouse-Coopers LLP, 2008 WL (S.D.N.Y. Dec. 31, 2008). In this fraud action, the plaintiff moved to compel the production of metadata for a number of produced documents. The court denied the motion, citing plaintiff s failure to raise any issue as to the authenticity of the produced documents. Additional factors giving rise to the denial of the motion was plaintiff s failure to identify the types of metadata sought or explain why metadata was relevant to the matter. Covad Comm. Co. v. Revonet, Inc., 2008 WL (D.D.C. Dec. 24, 2008). In this trade secrets misappropriation litigation, the plaintiff moved to compel the defendant to reproduce e- mails in native format that were previously produced in hard copy. Having been written prior to the 83

84 effective date of the amendments to the Federal Rules, the plaintiff s document production request did not explicitly include electronically stored information and failed to request a particular format for production. Magistrate Judge Facciola held that both parties played with fire by producing and accepting documents in hard-copy form, as they were not reasonably kept in hard copy form in the ordinary course of business. Therefore, Judge Facciola ordered the defendant to produce the requested information in native format on a CD and split the costs of privilege review (capped at $4,000) between the parties. Judge Facciola concluded by stating that, Two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time-consuming, and so easily avoided by the lawyers conferring with each other on such a fundamental question as the format of their productions of electronically stored information. Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL (S.D.Fla. Dec. 17, 2008). In this patent litigation, the defendants moved to compel production of consumer survey data relied upon in expert reports. The defendants requested hard copy printouts including all metadata that was previously produced in an allegedly unusable electronic.sav file format. The plaintiff opposed the motion, asserting that it produced all of its experts survey data in the same format in which it was reviewed and analyzed, and that such files can be easily accessed with any standard statistical computer package. Finding the plaintiff s production complied with Fed.R.Civ.P. 34(b)(2)(E) s requirement that data be produced in a reasonably accessible format, the court denied the defendants motion as the defendants provided no materials to demonstrate that their rebuttal experts were unable to access or review the data. Superior Prod. P ship v. Gordon Auto Body Parts Co., Ltd., 2008 WL (S.D. Ohio Dec. 2, 2008). In this predatory pricing case, the plaintiff sought production of electronic documents in native format that were previously produced in hard copy. The defendants opposed native production, arguing their computer system did not maintain metadata and therefore no purpose would be served in native production. Citing Fed.R.Civ.P. 26 s preference for native format production, the court ordered the defendants to produce the documents natively, finding benefit in the ease at which electronic documents can be stored and manipulated during the litigation process. Opperman v. Allstate New Jersey Ins. Co., 2008 WL (D.N.J. Nov. 24, 2008). In this class action lawsuit, the plaintiffs sought production of third-party owned proprietary software licensed and used by the defendants. The plaintiffs claimed they needed unfettered access to the software to determine how the defendants determine property loss adjustments and if the supply prices were manipulated or altered. The defendant and third-party opposed this request, claiming all relevant evidence was previously produced; less intrusive means were not exhausted; and unfettered access was not necessary. Finding the software relevant and necessary to the plaintiffs claims, the magistrate judge ordered the defendant to produce the software in an accessible form. Additionally, to circumvent the potential harm of allowing discovery of the third-party trade secret, the court entered a Discovery Confidentiality Order, limiting access and use of the software. Moore v. Abbott Lab., 2008 WL (S.D.Ohio Nov. 19, 2008). In this employment discrimination case, the plaintiff filed a motion to compel discovery, seeking documents unrestricted by time frame, geographic area or number or type of job applicants. The defendant argued that it previously produced 14,000 pages of documents, that further review of would cost $300,000 and that it should not have to spend additional time and money to produce nonrelevant documents. Agreeing with the defendant, the court found plaintiff s discovery requests, extraordinarily overbroad. The court stated that, mere speculation about relevance, is not 84

85 enough to order production of requested documents. Accordingly, the court denied the plaintiff s motion. Integrated Serv. Solutions, Inc. v. Rodman, 2008 WL (E.D.Pa. Nov. 3, 2008). In this ongoing litigation, the plaintiff sought production of responsive electronic data contained on computers owned by a non-party. The parties to this dispute agreed to retain a vendor to perform a search of the laptop in question, to determine whether it contained, or once contained, any documents responsive to the subpoena. The plaintiff also sought the vendor report detailing the inspection, claiming there was an understanding between the parties that such a report would be provided. The non-party argued against production asserting the search terms were overbroad and likely to reach competitive information that was irrelevant to the litigation at hand and that there was no agreement to provide the vendor report. Accepting the non-party s assertions of nonresponsiveness, the court denied the plaintiff s motion to compel. The court stated it would not require the non-party to allow the plaintiff, a competitor, to thumb through an electronic file drawer to double-check document review for relevance. However, the court found evidence of an understanding that the plaintiff would receive a written vendor report and allowed the plaintiff the option to seek the report at its own expense. Spieker v. Quest Cherokee, 2008 WL (D.Kan. Oct. 30, 2008). In this lawsuit seeking class action certification, the plaintiffs filed a motion to compel production of electronically stored information (ESI). The defendant argued undue burden and provided evidence that the estimated cost of production, including collection, processing, reviewing and copying costs, would be $375,000, while the plaintiffs claims were worth $100,000 or less. Determining the plaintiffs failed to explain the relevancy of the disputed ESI in relation to class certification, the court denied the plaintiffs motion without prejudice. As the plaintiffs were granted leave to re-file its motion to compel, the court went on to address several additional issues raised by the parties. Ultimately the court instructed the parties to discuss Fed.R.Evid. 502 in future production and cost discussions, noting that Rule 502 was enacted to reduce the costs of exhaustive privilege reviews of ESI. Ross v. Abercrombie & Fitch, Co., 2008 WL (S.D.Ohio Oct. 27, 2008). In this securities litigation, the plaintiff requested the court to order the defendant to produce an additional 95,000 documents hit by a revised keyword search. The plaintiff argued these documents would most likely have been produced had the defendant understood the list of Search Term Revisions supplied by the plaintiff to be supplemental rather than replacing the plaintiff s previous list of search terms. The defendant argued it should not have to spend the time and resources to review and produce the additional documents under the revised search terms since the requested documents would likely be irrelevant and because it previously produced over one million pages of documents. Determining the plaintiff failed to meet its burden and show that the documents likely relevance outweighed the review and production costs, the court denied the plaintiff s motion. Metavante Corp. v. Emigrant Savings Bank, 2008 WL (E.D.Wis. Oct. 24, 2008). In this contract litigation, inter alia, the defendant filed a motion to compel the discovery of the plaintiff s source code, claiming such information was essential to the defendant s counterclaim. The defendant argued the source code was the only evidence that may have revealed the quality of the product the plaintiff produced under the contract. The plaintiff argued against production of the source code, claiming undue burden in that it would cost $300,000 and take 5,000 hours. Due to the defendant s willingness to employ outside consultants to review the code for relevant information, thereby reducing cost, the court ordered its production finding the potential value of the source code outweighed the burden. Digicel v. Cable & Wireless PLC, [2008] EWHC 2522 (CH) (23 October 2008). In this breach of statutory duty litigation, the Claimants (plaintiffs) applied (moved) for restoration of back-up tapes 85

86 and the use of additional search terms. Previously, the law of the multiple jurisdictions in which the Claimants and Defendants conducted business changed to increase competition by statutorily requiring surrender of Defendant s exclusive telecommunication licenses, giving rise to the Claimants allegation of deliberate delay and damages. During initial disclosures, the Defendants unilaterally declined to restore or search back-up tapes and chose 10 search terms with 6 similar stem words, for which it was criticized by the Claimants. Balancing Paragraph 2A of Part 31 Practice Decision calling for early discussion of issues with Rule 31.7 requiring a reasonable search, the court ordered the Defendant to restore backup tapes of relevant employees and employ a select few additional search terms that were requested by the Claimant. The court noted that, the rules do not require that no stone should be left unturned, but was unwilling to allow one party to unilaterally decide which searches should be conducted. Containment Technologies Group v. Am. Soc y of Health Sys. Pharmacists, 2008 WL (S.D.Ind. Oct. 10, 2008). In this defamation case, the defendants moved to compel production of documents containing trade secrets, and the plaintiff moved for a protective order. The parties began negotiating a proposed protective order, but could not agree to specific terms. The defendants argued that a protective order was unnecessary and that the confidential designation should only apply to those portions or pages that are confidential, while the plaintiff wanted to designate the entire document as confidential. Requiring higher scrutiny for a confidential designation for documents filed under seal as opposed to those produced during discovery, the court allowed the plaintiff to designate entire documents as confidential if done so in good faith. Hoover v. Fla. Hydro, Inc., 2008 WL (E.D.La. Oct. 1, 2008). In this contract dispute, the plaintiff moved to quash the defendant s subpoenas duces tecum issued to two third-party individuals demanding computer equipment for inspection. The plaintiff argued the subpoenas were unwarranted, unduly burdensome and were a fishing expedition. The defendant disagreed with the plaintiff, arguing the subpoenas were issued with good cause. Finding the first individual sufficiently responded to a previous subpoena, the court granted the motion to quash. Regarding the second individual, the court denied the motion to quash determining there was relevant information on the requested computer. The court ordered the defendant to prepare a search protocol for inspection of the individual s computer that excluded privileged communications. Kipperman v. Onex Corp., 2008 WL (N.D.Ga. Sept. 19, 2008). In this litigation, the defendants sought relief from having to review and produce all results from an search on the defendants backup tapes, arguing that the broad search terms resulted in thousands of irrelevant hits. The defendant asked to be excused from producing (1) irrelevant documents, (2) documents responsive to one specific transaction, and (3) documents captured from the boxes of one specific subsidiary company. Finding the documents referred to in the second and third objections were highly unlikely to garner relevant information, the court granted the requested relief. Regarding the defendants relevancy and volume objections, the court noted the defendants previously had the opportunity to narrow the search terms and provide a list of people that could help reduce the number of boxes searched, which they did not take advantage of. The court therefore refused relief stating, Defendants must now lie in the bed that they have made. Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL (M.D.Fla. Sept. 15, 2008). In this breach of contract litigation, the plaintiff sought production of documents that it alleged were relevant to prove its claim that the defendant violated its duty of good faith and fair dealing (the defendant was the surety for the party that previously entered into a contract with the plaintiff). The plaintiff requested: all documents and electronic documents that reflect all communications between the defendant and the third party; documents that reflect the defendant s knowledge of the 86

87 third party s insolvency and inability to perform; and reproduction of documents in their native form that were previously produced in a TIFF format. The court denied the first request as overbroad, but granted the second request, finding the sought-after information to be relevant. Despite the plaintiff s failure to specify a production format, the court determined the defendant did not comply with the Advisory Committee Note to Fed.R.Civ.P. 34 when it chose to produce TIFF images. The court ordered the defendant to reproduce documents in either their native format, another comparably searchable format or to supply the plaintiff with software for searching the TIFF images. Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL (N.D.N.Y. Sept. 12, 2008). In this patent infringement litigation, the defendant moved to compel the plaintiff to organize its production of electronic documents and explain which documents corresponded to each document request. (The plaintiff previously produced 405,367 pages of electronic documents in response to seventytwo separate document requests.) The plaintiff argued the documents were produced as they were maintained in the ordinary course of business under Fed.R.Civ.P. 34(b)(2), and that further organization and an index of the materials was not required. The court determined that the plaintiff neither demonstrated that the documents were produced as they are ordinarily maintained, nor provided information regarding how they are ordinarily kept. However, the court nonetheless determined it would be unfair and unduly onerous to require the plaintiff to organize the documents to correspond to the defendant s numerous document requests. The court therefore ordered the plaintiff to produce an index of the produced documents, including a description of the filing system under which each document was ordinarily maintained, and an indication of whether the documents were hard copy, digital or both. Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL (N.D.Fla. Aug. 29, 2008). In this trade secret litigation, the plaintiff filed a motion to compel production of relevant and sought sanctions for defendant s untruthful representations regarding the account. The defendant argued he did not identify the particular Yahoo! account because he could not produce s from it, claiming they were deleted as a result of his deactivation of the account. Frustrated by the defendant s lack of evidence of destruction, the court ordered the defendant to immediately attempt to obtain and produce s from the Yahoo! account. The court also awarded sanctions against the defendant, but stayed the determination of which sanctions to impose until a later date. Dorn-Kerri v. South West Cancer Care, 2008 WL (S.D.Cal. Aug. 18, 2008). In this wrongful termination litigation, the pro se plaintiff moved to compel the defendant to supplement its response to her request for production of documents. The plaintiff sought a report from her period of employment in from a database that updates continually. The defendant responded that the records no longer exist since the printed records are destroyed post-processing, and that the software program is incapable of producing historical reports, as corroborated by plaintiff s expert. Citing the Ninth Circuit s repeated admonition that courts construe pro se pleadings and motions liberally, the court imposed a burden on the defendant to prove discovery should not be allowed. Finding the defendant had met its discovery obligations by demonstrating the reports no longer tangibly exist and are incapable of electronic regeneration, the court denied the motion. The court stated that if requested material does not exist, it cannot be in the possession, custody, or control of a party and therefore cannot be produced for inspection. White v. Graceland Coll. Ctr. for Prof l Dev. & Lifelong Learning, Inc., 2008 WL (D. Kan. Aug. 7, 2008). In this wrongful termination litigation, the plaintiff moved to compel the defendants to provide complete information on its document retention policy and how it may have affected relevant electronically stored information. The defendants argued that providing such information would be overly broad and unduly burdensome, and that such information was 87

88 irrelevant, proprietary and confidential. Determining the defendants had provided a sufficient response to the discovery request via expert affidavit establishing an adequate search of the electronic systems, the court denied the motion to compel. The plaintiff also sought reproduction of certain electronic documents in native format, claiming that production of ESI in paper format was contrary to the reasonably usable requirement of Fed.R.Civ.P. 34. The defendants argued that converting the s and attachments to PDF, then printing them and producing the printouts constituted a reasonably usable form since the plaintiff failed to request a particular format. Disagreeing with the defendants, the court held that the conversion of electronic documents to paper did not satisfy the requirements under Fed.R.Civ.P. 34, and accordingly granted the plaintiff s motion to compel production in native format. The court also noted that this dispute could have been avoided had the parties adequately discussed production format during the Fed.R.Civ.P. 26(f) conference as required by Guideline 4(f) of the United States District Court for the District of Kansas Guidelines for Discovery of Electronically Stored Information. Citizens for Responsibility and Ethics in Wash. v. Executive Office of the President, 2008 WL (D.D.C. July 29, 2008). In this ongoing litigation alleging improper deletion of White House s, the plaintiffs sought an order requiring the defendants to recover and restore certain electronic communications created and/or received within the White House. Previously, Magistrate Judge John M. Facciola recommended the Court order the defendants to search the workstations of employees during the time period at issue and issue a preservation notice directing them to surrender media that may contain relevant s. In the dispute at hand, the defendants sought reconsideration, arguing all relevant was preserved on backup tapes. Finding the defendants argument to be fundamentally flawed, the Magistrate Judge denied the motion for reconsideration, pointing out that present in a personal folder on an employee s work station is not necessarily on the backup tape. However, as the defendants failed to keep track of which hard drives were used by which individuals, the Magistrate determined that the burdens imposed on the defendants to preserve all 545 workstations was too great, and therefore recommended no further relief beyond his previous recommendation. Suarez Corp. Indus. v. Earthwise Technologies, Inc., 2008 WL (W.D.Wash. July 17, 2008). In this litigation involving trademark infringement, inter alia, the plaintiffs filed a motion to compel seeking electronic documents. Unsatisfied with the defendants production, the plaintiffs asserted the production was a disorganized document dump and that they should be able to specify production format with regard to the organization of production. Finding the plaintiffs argument unpersuasive, the court determined the plaintiffs were without authority to mandate the defendants production organization under Fed.R.Civ.P. 34(b). The court also determined the advisory committee comments to that rule do not specify the term form as referring to the organizational mandates found in Fed.R.Civ.P. 34(b)(2)(E). Nevertheless, the court required the defendants to convey some information as to how the documents were determined to be responsive or how the documents were kept in the normal course of business. Accordingly, the court granted the motion to compel in part. United States v. Two Bank Accounts, 2008 WL (D.S.D. July 2, 2008). In this litigation seeking forfeiture of two specific bank accounts, the government filed a motion to compel seeking production of requested electronic information and production of specified computers used in transactions alleged in the complaint for imaging. Appearing pro se, the defendant, who asserted an interest in some of the potentially forfeited accounts, filed a motion to deny requests for production, claiming undue expense. Finding insufficient facts to establish undue burden or expense given the government s ability to travel to the relevant computers and willingness to copy the relevant documents at their own expense, the court granted the motion to compel. Additionally 88

89 the court sternly reminded the defendant that discovery is not a game but is a two-way street that must be diligently followed. See also United States v. 11 Bank Accounts, 2008 WL (D.S.D. July 2, 2008). Viacom Int l Inc. v. YouTube Inc., 2008 WL (S.D.N.Y. July 2, 2008). In this copyright infringement litigation, the plaintiffs filed a motion to compel production of electronically stored information, seeking copies of all videos currently stored on the defendants hard drives that were once available for public viewing on YouTube.com. Additionally the plaintiffs sought the defendants logging database which is stored on live computer hard drives and demonstrates how often each video is viewed along with the viewer s login ID and IP address. The defendants claimed these requests raised user privacy concerns and were burdensome, expensive and overbroad, especially since the database contained approximately 12 terabytes of data. Granting the plaintiffs motion to compel with regard to these two requests, the court noted that the defendants cited no authority barring them from disclosing user information in civil discovery and that login IDs are anonymously created. The court ultimately determined that production of the removed videos was not unduly burdensome and the plaintiffs need for the data outweighed the unsubstantiated cost of producing the information, and granted the plaintiffs motion to compel. Dean v. New Werner Holding Co. Inc., 2008 WL (D.Kan. June 26, 2008). In this product liability litigation, the plaintiff filed two motions to compel production and sought sanctions. The plaintiff argued that the defendant failed to produce complete initial disclosures in response to the interrogatories and production requests, including a failure to produce any electronic data, digital media or metadata. The defendant claimed that the interrogatory requests were overbroad and unduly burdensome, and that both the interrogatory requests and production requests sought information not under its control. The defendant also represented to the court that it intended to produce relevant electronically stored information (ESI) in its possession, but gave no anticipated production date. Disagreeing in part with the defendant, the court determined the information sought in the production requests was under the control of the defendant, but provided limitations to some of the plaintiff s interrogatory requests. The court also noted that the defendant already had nearly six months to review and accumulate its ESI, and ordered production within 30 days. The court declined to issue sanctions for attorneys fees or reasonable expenses incurred by the plaintiff in bringing these two motions, finding sanctions unwarranted. Daimler Truck N. Am. LLC v. Younessi, 2008 WL (W.D.Wash. June 20, 2008). In this litigation alleging a breach of a duty of loyalty, the interested third party filed a motion to quash subpoenas served upon it by the plaintiff and sought a protective order. The third party argued the search of its hard drives was unduly burdensome and would result in the disclosure of confidential trade secrets. Finding the plaintiff s discovery request to meet the good cause standard of Fed.R.Civ.P. 26(b)(1), the court nonetheless quashed the subpoena insomuch as it required the third party to produce its computers for copying. However, the court directed the third party to search its own computers. Recognizing the need for a protective order given the sensitive nature of trade secrets, the court relied on Playboy Enterprises, Inc. v. Welles, F.Supp.2d 1050 (S.D.Cal. 1999) as a model for this case, ordering the third party to conduct a search of the hard drives, producing information that is relevant, responsive and does not disclose trade secrets. Race Tires Am., Inc., a Div. of Specialty Tires of Am., Inc. v. Hoosier Racing Tire Corp., 2008 WL (W.D.Pa. June 16, 2008). In this antitrust litigation, the plaintiffs filed a motion to compel seeking the completed production of paper documents and electronically stored information (ESI). The defendants had been continually producing documents on a rolling basis and had not specified a completion date. Addressing the plaintiffs motion, the court noted the defendants production was due four months prior and ordered completed production of all non-privileged 89

90 documents and responsive ESI within seven days. Noting this dispute was the fifth discovery motion filed in this litigation, the court reminded both parties that discovery is supposed to occur with minimal judicial intervention. The court also warned both parties sanctions would be imposed if further discovery shenanigans or other discovery abuse were to occur. Mon River Towing, Inc. v. Industry Terminal and Salvage Co., 2008 WL (W.D.Pa. June 10, 2008). In this negligence litigation, the defendant filed a motion to compel production of computer printouts and records. The plaintiff objected, arguing that the requested documents are not kept in the ordinary course of business and that the Federal Rules of Civil Procedure do not require the creation of documents for production. Analyzing Fed.R.Civ.P. 34(a)(1), the court found that Rule 34 s translation requirement does not require a responding party to create responsive material but does require the production of computer printouts, and granted the defendant s motion to compel. The court also strongly encouraged the parties to meet and confer to reach an agreement in line with the court s order. Margel v. E.G.L. Gem Lab Ltd., 2008 WL (S.D.N.Y. May 29, 2008). In this trademark litigation, several discovery disputes were raised including the defendants assertion that the plaintiffs failed to respond fully to production requests and the plaintiffs application to compel additional discovery. Finding that the defendants failed to establish sufficient evidence of the existence of additional relevant documents, the court denied the defendants motion. However, the court ordered the plaintiffs to pay reasonable attorneys fees and expenses associated with the motion, noting the second production by the plaintiffs new counsel produced almost four times the information previously produced. Addressing the plaintiffs motion, the court ordered the defendants to produce the electronic data from which the report in question was generated. L.H. v. Schwarzenegger, 2008 WL (E.D. Cal. May 14, 2008). In this class action litigation, the plaintiffs filed a motion to compel an inadequate privilege log and sought sanctions. The plaintiffs claimed some of the defendants privileges were inadequately asserted and the defendants produced electronic documents in a non-searchable PDF format that were searchable in their native format. The defendants asserted they substantially complied with previous production orders and were not required to provide files natively because the plaintiffs did not specifically request that production format. Finding the defendants behavior representative of purposeful foot dragging, the court determined the defendants production of non-searchable documents violated Fed.R.Civ.P. 34 s requirement that electronic documents be produced in a reasonably usable form and ordered monetary sanctions. Additionally, the court found the previously produced privilege logs lacking in substance and usability, and ordered the defendants to produce a final omnibus privilege log. Finally, the court warned the defendants that it would allow the plaintiffs to bring a motion for sanctions or a waiver of privilege if the defendants continue to abuse the privilege log procedure. Whitney v. JetBlue Airways Corp., 2008 WL (E.D.N.Y. April 29, 2008). In this negligence litigation, the plaintiff sought sanctions alleging that the defendant willfully destroyed a critically relevant handwritten report. The defendant argued the handwritten document was destroyed after it was entered into an electronic database as part of a bulk destruction of documents. Finding the defendant acted negligently in allowing destruction of the handwritten report, the court nevertheless denied the plaintiff s request for sanctions. The court noted that the plaintiff did not sufficiently establish the report s relevance nor prove that the report contained information beyond what was produced in electronic form. However, the court awarded to the plaintiff the attorney s fees and costs in connection with the motion due to the defendant s destruction of the document. 90

91 GP Indus., LLC v. Bachman, 2008 WL (D.Neb. April 10, 2008). In this patent litigation, the court reconsidered the plaintiff s motion for sanctions and to compel after the defendant produced approximately 3,000 pages of documents in a jumbled fashion and refused to identify which documents were responsive to which document requests. The defendant argued the documents were produced as they were kept in the ordinary course of business and submitted an index. Finding the index to be untimely and unhelpful, the court determined the defendant did not comply with the previous court order. Additionally, the court ordered the defendant to identify the responsiveness of each document or potentially face the imposition of sanctions. The court also awarded the plaintiff costs associated with bringing the motion to compel. Autotech Techs. Ltd. P ship v. Automationdirect.com, Inc., 2008 WL (N.D.Ill. April 2, 2008). In this trademark and copyright infringement litigation, the defendant sought production of a document in its native format with metadata. Arguing against production, the plaintiff asserted the document in question was previously produced in both.pdf format and in paper format. Finding no previous specific production format request, the court determined the plaintiff had the option to produce the document in the form in which it is ordinarily maintained, or in a reasonably usable form. Additionally, the court stated the defendant was the master of its production requests [and] it must be satisfied with what it asked for as the original request did not include metadata. ClearOne Commc ns, Inc. v. Chiang, 2008 WL (D.Utah April 1, 2008). In this trade secret litigation, the plaintiff moved for entry of a search protocol order establishing guidelines for searching mirror images and identifying relevant and responsive documents. Previously the plaintiff accepted search terms proposed by the defendants with five additions, but disputes arose over the conjunctive or disjunctive use of the terms. The defendants argued it was reasonable to search conjunctively (i.e., require connectors between the search terms) in order to narrow the results to relevant subjects. Analyzing the advantages and disadvantages of both search techniques, the court ordered license terms to be searched disjunctively and name terms to be searched conjunctively. Flagg v. City of Detroit, 2008 WL (E.D.Mich. Mar. 20, 2008). In this suit, the plaintiff sought production of text messages to support his claim that the defendants lax investigation prevented the filing of a wrongful death lawsuit. After determining that certain text messages were discoverable, the court set forth a detailed set of parameters for the review and production of the text messages. The defendant was ordered to provide the third party service provider with names and related PIN numbers for the relevant individuals, thereby allowing the service provider to willingly produce the text messages to the court under seal for privilege review. Due to the time consuming nature of this task, the court appointed two magistrate judges to collect and review the text messages and make the initial determination as to discoverability. United States v. O Keefe, 2008 WL (D.D.C. Feb. 18, 2008). In this suit, the government alleged the defendant received gifts from the co-defendant in exchange for expedited visa requests. The defendants filed a motion to compel claiming the government did not fulfill the responsibilities set forth in a previous discovery Order. Included within the electronic search were electronic documents and s that the defendants claimed were produced in a manner rendering them unidentifiable. Applying Fed.R.Civ.Pro. 34, the court ordered the parties to participate in a good faith attempt to reach an agreement on production in a readily usable format. D'Onofrio v. SFX Sports Group, Inc., 2008 WL (D.D.C. Jan. 23, 2008). In this employment discrimination case, the plaintiff brought suit against her former employer alleging disparate treatment based on gender, a hostile work environment and termination in retaliation for protected activities. After several discovery conferences and motions, the case was referred to Magistrate Judge John M. Facciola for management of the discovery process. In the current motion 91

92 to compel, the plaintiff sought production of a document known as the Business Plan in its original electronic format with accompanying metadata and claimed the defendant caused deliberate spoliation of electronic records and failed to produce relevant documents. The defendant argued production of the Business Plan in its original format was not required by FRCP 34 absent a specific request and it never received any correspondence alleging deficiencies in its production. The judge determined that because the plaintiff failed to request the Business Plan in a specific format, she was precluded from seeking reproduction in a different format because the if necessary clause of FRCP 34 establishes the permissible scope of a discovery request but does not establish constraints on the manner of production. Additionally, the judge ordered an evidentiary hearing to assess the merits of the spoliation claim, finding the record simply too thin. Peacock v. Merrill, 2008 WL (S.D.Ala. Jan. 17, 2008). In this litigation, the defendants sought production of electronic tax information, and the plaintiff claimed the motion was moot, arguing she had already fully produced responsive documents. The defendants sought an exact replica of a floppy disk to determine if the plaintiff fully complied with the discovery request. Relying on FRCP 34(b)(i)-(iii), the court ordered production of disk files in native electronic format to ensure access to all metadata, determining that the date stamps of many of the documents were relevant. Ryan v. Gifford, 2007 WL (Del.Ch. Nov. 30, 2007). In this suit involving claims of stock option backdating, the plaintiffs filed multiple motions to compel the defendants to produce responsive documents in the native file format with original metadata. The court granted the plaintiffs motion to compel, finding metadata especially relevant in cases where the integrity of dates lies at the heart of a dispute. The relevance of the metadata was further illustrated by the defendants review of metadata as part of their investigation of backdating problems. The court granted the plaintiff s motion and ordered the defendants to produce responsive documents in native file format. In re Rule 45 Subpoena Issued to Robert K. Kochan, 2007 WL (E.D.N.C. Nov. 26, 2007). In this underlying investigation of allegedly fraudulent insurance practices arising from damages caused by Hurricane Katrina, the plaintiffs served a subpoena on Robert Kochan, president of the defendant corporation, seeking to image the laptop computer of two corporate employees. Kochan s attorney filed written electronic objections to the subpoena following close of business the evening before the subpoena was to be executed. The next morning, having traveled from Mississippi and New Mexico, the plaintiff s counsel and computer forensic consultant arrived at the defendant s office in North Carolina to image the relevant hard drives. The defendant refused to allow access to the requested information. The plaintiff moved the court for an order compelling compliance with the subpoena and sought to hold Kochan and his attorney in contempt of court. The plaintiff also sought prior and future travel expenses. The court found the defendant s objection to the subpoena timely as it was technically filed before the specified time for compliance and denied the plaintiff s request to hold the defendant in contempt. However, the court found that the defendant improperly relied on bald assertions that the production sought is impermissible and therefore granted the plaintiff s motion to compel, ordering Kochan to comply with the subpoena by 5 p.m. on the day of the decision. Michigan First Credit Union v. Cumis Ins. Soc y, Inc., 2007 WL (E.D. Mich. Nov. 16, 2007). In this suit, the plaintiff sought sanctions based on the defendant s alleged failure to comply with a previous court order pertaining to production of ESI. The plaintiff claimed the defendant s production contained no metadata and was not in native format as requested. The defendant claimed that the information was not stored in a way that allowed for easy retrieval of metadata, if any metadata even existed. Because the previous court order did not address the issue of metadata or native files, the court held that the defendant s failure to produce that information did 92

93 not violate the order. Further, agreeing with the defendant s argument that production of metadata would be overly burdensome, the court concluded that no evidentiary value would be gained from the metadata to warrant imposing the significant burden on the defendant. Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL (D.Colo. Nov. 13, 2007). In this lawsuit, the plaintiff brought a bad faith claim against her disability insurer. During discovery, the defendant sought a DVD produced by the University of Denver containing over 4,000 s with 1,500 attachments sent or received by the plaintiff while she was at the University. In response, the plaintiff produced a mere ten strings and a privilege log of 135 additional s off the DVD. The plaintiff blamed the discrepancy on a lack of computer expertise and argued against production of the entire DVD as irrelevant and privileged. The court found the entire DVD relevant to the underlying claim of long term disability and ordered that it be produced by the plaintiff, subject to the provisions of FRCP 26(b)(2)(B). Verigy US, Inc. v. Mayder, 2007 WL (N.D.Cal. Oct. 24, 2007). In this trade secret misappropriation case, the plaintiff sought an expedited motion to compel the defendants to produce mirror images of all hard drives. The issue at question was whether the defendants should be permitted an opportunity to review and object to any potential third party expert searches deemed necessary by the plaintiff. The court held that the defendants review of the search terms was entirely reasonable, comporting with the normal conduct of discovery. The court approved the defendants proposed protocol which allowed for 1) discovery in areas the defendants deemed presumptively relevant and 2) other searches at the plaintiff s request, subject to the defendants opportunity to review and object. MGPIngredients, Inc. v. Mars, Inc., 2007 WL (D.Kan. Oct. 15, 2007). In this suit alleging patent infringement and misappropriation of trade secrets inter alia, the plaintiff moved the court to compel the defendant to identify particular documents responsive to each request for production, rather than merely producing documents in the format in which they are kept in the usual course of business. The court denied the motion, relying on Fed.R.Civ.P. 34(b) which requires a responsive party to produce documents either in the manner in which they are kept in the usual course of business or to organize and label the documents to correspond to each request. As the parties failed to agree in advance to an alternative manner or production per Rule 34(b), the court refused to order a different form of production. Schmidt v. Levi Strauss & Co., 2007 WL (N.D.Cal. Sept. 10, 2007). In this action brought under the Sarbanes-Oxley Act, the plaintiffs, former employees of the defendant, claimed they were wrongfully terminated. The defendant counterclaimed, alleging that the plaintiffs took confidential company documents. In the discovery dispute at issue, the plaintiffs moved for an order requiring the defendant to reproduce its entire document production in native electronic format. As the plaintiffs initial discovery request occurred prior to the 2006 Fed. R. Civ. P. amendments and did not specify the form in which the documents should be produced, the court held that the defendant s burden to reproduce documents in native electronic format would far outweigh any benefit to be gained by the plaintiffs. Valdez v. Town of Brookhaven, 2007 WL (E.D.N.Y July 5, 2007). In a suit alleging illegal eviction based on racial discrimination, the plaintiff sought a court imposed litigation hold on the defendant s relevant employee records, arguing the defendant had a history of terrible record keeping. While the court noted that the defendant is under a duty to preserve evidence relevant to the litigation, the court denied the preservation order request, stating preservation orders are burdensome and expensive and should not be entered into lightly absent a clear need. In re Maura, 2007 WL (N.Y.Sur.Ct. June 28, 2007). In a suit to determine her entitlement to her decedent husband s estate in spite of their prenuptial agreement, the respondent sought 93

94 discovery from the non-party attorney and his firm who drafted the agreement. She sought access to the attorney s computer for records of billing and all existing and deleted records concerning the prenuptial agreement. The attorney argued attorney-client privilege with regard to other information on the computer and offered the firm s backup tapes in the alternative. The court held that the backup tapes were insufficient as they would lack deleted and altered records and ordered the attorney s hard drive to be imaged. The court ordered the attorney to choose a computer forensics expert to submit a cost proposal for the imaging. The attorney should then forward a copy of the proposal to the respondent, at which time she would determine if she was willing to go forward with or without the information. Williams v. Taser Int l Inc., 2007 WL (N.D.Ga. June 4, 2007). In a wrongful death action, the plaintiffs brought three motions before the court to resolve numerous discovery disputes. The parties disagreed about the manner in which the searches for responsive documents contained within the defendants electronic databases were to be performed, specifically focusing on the timing of production, the specific search terms to be used, and the extent to which the plaintiffs would be allowed to participate in the search process. The plaintiffs requested that they be permitted to actively participate in the search process at the defendants facility. The defendants opposed this request and stated if the search terms can be agreed upon in advance via , the defendant will locate the documents, conduct a privilege review, and produce responsive documents. Finding both proposals deficient, the court, being frustrated with the delay and inability of the parties to reach an agreement, entered an extensive discovery protocol and ordered the defendants to use a specified list of keyword search terms. The court also ordered a protocol to be followed regarding inadvertent disclosure of privileged information and set a deadline for completion of discovery. In re ATM Fee Antitrust Litig., 2007 WL (N.D. Cal. June 25, 2007). In a suit alleging an illegal price fixing scheme, the plaintiff motioned the court to compel the defendant to produce numerous additional documents in discovery and sought modification of the production format previously agreed upon by the parties. The plaintiff sought production of material regarding networks other than the defendants, material provided to the government or in connection with other relevant private litigation, material regarding ATM networks in foreign countries, material from the inception of the plaintiff s network to date, materials regarding entities that the defendant acquired, among other things. The defendant argued the scope of discovery sought was limitless and sought relief from complying with all of the requests. The court set forth general guidance regarding the appropriate scope of discovery, operating under the perspective that discovery is limited by the specific subject matter presented in the complaint. As for the production format, the parties originally agreed to produce in a tiff image format, subject to optical character recognition scanning. The court declined to order a different production format because the parties had reached the agreement over two years prior, well before the new Federal Rules of Civil Procedure amendments were modified in December M Co. v. Kanbar, 2007 WL (N.D.Cal. June 14, 2007). In this trademark infringement case, the defendant motioned the court to order the plaintiff to organize or itemize its production in some useful way. The plaintiff produced over 170 boxes of printed documents, as organized by electronic storage methods in the ordinary course of business. The court held while in most situations the producing party has the option to produce documents either in the usual course of business or organized by categories, there are some instances where special factors justify the requesting party selecting the method, however, volume alone is insufficient for a finding of special circumstances. In this case, the court determined the large volume was due to the defendant s broad document requests and lack of demand for electronic production, and therefore of 94

95 defendants own making. However, the court found the plaintiff s printed production format concerning and ordered the plaintiff to produce all previously produced responsive ESI in an electronic and reasonably usable format. The court noted that although the electronic production did not provide the defendant quite what it asked for, it should enable the defendant to utilize commercially available software to manage and review the production. Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 2007 WL (D.D.C. June 1, 2007). In a suit alleging violations of the Americans with Disabilities Act, inter alia, the plaintiff motioned the court to order the defendant to restore and search backup tapes for discoverable information. The plaintiff claimed discovery of the backup tapes was necessary because the defendant s system was programmed to automatically delete all s after 60 days, and the defendant did nothing to stop the obliteration since the filing of the law suit, over three years earlier. The defendant argued that such an order would create undue burden and expense, and that there was little reason to suppose that the backup tapes would produce relevant information. The court granted the plaintiff s motion noting that while, [T]he newly amended Federal Rules of Civil Procedure initially relieve a party from producing electronically stored information that is not reasonably accessible because of undue burden and cost, I am anything but certain that I should permit a party who has failed to preserve accessible information without cause to then complain about the inaccessibility of the only electronically stored information that remains. The court also ordered the parties to meet and confer to reach an agreement as to how the backup tape restoration, search, review, and production would be conducted. The court suggested concept searching as opposed to keyword searching as a more efficient search method, likely to produce more comprehensive results. Oxford House, Inc. v. City of Topeka, 2007 WL (D. Kan. Apr. 27, 2007). In this case, the plaintiffs brought suit against the defendant for denying several conditional housing permits. The plaintiffs brought a motion to compel the defendant to comply with several discovery requests and produce all electronically stored information (ESI), including and instant messages, relating to any ex parte communications regarding the denial of the plaintiffs permits. The defendant contended that all requested ESI was automatically deleted and overwritten by the defendant s archiving system on its disaster back-up tapes. The plaintiffs disputed the defendant s contention and argued that even if the disputed ESI was deleted, the defendant still had a duty to preserve the potential evidence and argued that the defendant should be sanctioned for failure to preserve the data. The court found that the defendant fulfilled its discovery obligations and adequately explained the non-existence of any ESI requested by the plaintiff. The defendant provided several affidavits from witnesses stating there was no ESI to produce to the plaintiffs. Furthermore, the court found the failure to preserve the evidence was reasonable since the duty to preserve the documents and the likelihood of litigation did not arise until well after the documents were overwritten on the back-up tapes. Moreover, the court used a cost-benefit balancing test called the marginal utility test to find that the production of the requested ESI would be unduly burdensome and costly since the likelihood of retrieving these electronic communications is low and the cost high. Wells v. Xpedx, 2007 WL (M.D. Fla. Apr. 23, 2007). In this employment discrimination suit, the plaintiff sought production of from seven of the defendant s employees. The plaintiff also submitted that the defendant implemented a new deletion policy where s were deleted within 90 days of creation, unless designated for retention. Accordingly, the plaintiff sought permission from the court to take the deposition of the defendant s IT representative to determine if the defendant had any of the requested and if the defendant destroyed any relevant evidence. In response, the defendant argued that it had produced all relevant and that a 95

96 deposition to inquire about its deletion policy would be redundant and unnecessary. Although the court deferred ruling on the motion to compel the , the court granted the plaintiff permission to depose the defendant s representative. The court referred to the committee notes of Fed. R. Civ. P. 34, which states that [d]eleted s are, in most cases, not irretrievably lost. The court held the record was insufficient to determine whether the defendant produced all responsive documents to the plaintiff's requests and whether responsive documents exist elsewhere in the defendant's records which may be accessed electronically. The court also noted the defendant did not provide adequate information regarding its deletion policy which further warranted granting the plaintiff s deposition request. The court also ordered that after the deposition, the parties should confer in good faith and if a resolution concerning the discovery requests cannot be reached, the plaintiff should notify the court. Metro Wastewater Reclamation Dist. v. Alfa Laval, Inc., 2007 WL (D. Colo. Apr. 19, 2007). In a case involving claims of breach of contract, the defendant sought an order to compel the plaintiff to produce certain data in electronic format and all electronic documents, including archived or back-up s and electronic files. The defendant specifically wanted electronic data for the plaintiff's personnel identified in its responses to the defendant s discovery requests. Although the plaintiff argued that the requested information was overly broad, unduly burdensome, and costly, the court succinctly referred to Fed. R. Civ. P. 26 and held that the requested documents were relevant to the issues of the case and were discoverable. The plaintiff was required to produce all electronic documents, including the archived and back-up s for every employee referred to in their discovery responses. Wachtel v. Health Net, Inc., 2007 WL (D.N.J. Apr. 10, 2007). In this class action suit, the defendants sought a stay of two orders pending resolution of a mandamus petition before the Third Circuit Court of Appeals. Specifically, the defendants had been ordered multiple times over the last few years to produce certain electronic documents. The defendants argued that the production of the electronic data required them to restore and search through billions of s by thousands of employees at great cost. The court disagreed with the defendants and ordered production of the documents. The court found that this was yet another attempt by [the d]efendants to avoid discovery obligations that they have been ordered to comply with for years. The requested documents were not exceptional, and the court found it hard to believe that the documents were not stored in one central storage area. Furthermore, the defendants never objected to production of the documents when initially ordered and never provided evidence to the court to prove the burden of the search and retrieval effort. Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL (D. Kan. Apr. 9, 2007). In this antitrust litigation, the defendant filed a motion to compel the plaintiff to produce a Rule 30(b)(6) witness who could testify about the specific produces and practices relating to the organization s handling of electronic data. The defendant also requested an award of costs incurred in bringing the motion and taking the additional deposition. The plaintiff provided its Chief Executive Officer for the deposition; however, during the deposition it was apparent that the CEO was unprepared or did not have the requisite knowledge to adequately answer the questions about the plaintiff s computer systems and electronic discovery practices. The plaintiff argued that the topics of the deposition were overly broad and that it did not have enough time to prepare for the extensive deposition. Finding that it was the plaintiff s choice to use a designee without substantial personal knowledge of the noticed topics, and the fact that [the CEO] required extensive education about the noticed topics is a burden that must be borne by [the plaintiff] alone, the court ordered an additional deposition about the unanswered electronic data topics. The court refused to award 96

97 costs or sanctions because the parties did not discuss the narrow issue of compliance with Rule 30(b)(6) during the initial meet and confer conference. In re Veeco Instruments, Inc. Sec. Litig., 2007 WL (S.D.N.Y. Apr. 2, 2007). In this securities litigation, the plaintiff sought to compel the defendant to produce several named individuals documents from back-up tapes covering an eight-month period. The defendant objected, arguing that the plaintiff s motion was unduly delayed and that restoring and searching the back-up tapes would be extraordinarily burdensome and costly. The defendant further argued that if production of the back-up tapes was ordered, the plaintiff should bear the costs. The court noted that while the defendant had neglected to identify the back-up tapes as an inaccessible source of potentially responsive information, as required by Fed. R. Civ. Pro. 26(b)(2), both parties had overlooked their obligation to discuss discovery parameters and protocols. Finding that the plaintiff could not reasonably assume that the defendant would have undertaken discovery of the back-up tapes as a matter of course, the court determined that the back-up tapes were not reasonably accessible. The court then considered whether good cause justified discovery of the back-up tapes despite the associated burdens and costs. The court cited the resources of the parties, the discoverability of the information, the specificity of the request and the unavailability of the information from other more accessible sources as reasons demonstrating good cause. Accordingly, the court directed the defendant to restore the back-up tapes for the specified time period and to produce responsive, non-privileged information to the plaintiff. Turning to the issue cost allocation, the court directed the defendant to initially to pay for the cost of production and postponed further cost-shifting analysis until it had a chance to review the results of the search and consider the actual time and effort expended by the defendant. Georgia Dept. of Agric. v. Griffin Indus., 2007 WL (Ga. App. Mar. 19, 2007). In this case the Georgia Department of Agriculture appealed a court order granting the requestor access to e- mails stored on disaster recovery back-up tapes under the Georgia Open Records Act. The appellate court found the Department had not been afforded proper notice to defend its position regarding several key issues including the costs and burdens of production, the proper allocation of costs between the parties and whether the s were open source records under the Act. The appellate court reversed the order and remanded the issue to the trial court. Memry Corp. v. Kentucky Oil Tech., N.V., 2007 WL (N.D. Cal. Mar. 19, 2007). In this discovery dispute arising out of a multi-party litigation, the counter defendant moved to compel the counterclaimant to produce computer hard drives for forensic inspection. The counter defendant argued the counterclaimant s production was incomplete when two s were not produced in discovery. While acknowledging the counterclaimant s production had not been absolutely perfect, the court noted that the counter defendant had not demonstrated that the data it sought was in jeopardy of spoliation or central to the dispute. Declaring the discovery phase of the litigation to have come to a close, the court denied the counter defendant s motion to compel. United States v. Premera Blue Cross, 2007 WL (S.D. Ohio Mar. 16, 2007). In a case brought under the False Claims Act, the plaintiff subpoenaed s from an accounting services provider for the defendant, a non-party to the suit. The non-party produced some records; however, the plaintiff claimed that the production was incomplete and compelled the court to order the non-party to produce all of the sought after records. The non-party argued that it would be unduly burdensome and costly to retrieve and produce the s at issue. Inferring that the non-party had already retrieved all of the s based on a statement contained in its briefing of the issue, the court held that the non-party had already assumed the costs of retrieval and should produce the sought after s, with the plaintiff responsible for the costs of production. 97

98 Bolton v. Sprint/United Mgmt. Co., 2007 WL (D. Kan. Mar. 8, 2007). In an employment discrimination suit brought by employees terminated in a reduction-in-force, the plaintiffs compelled the defendant to produce certain electronic documents, such as databases and spreadsheets, related to the terminated employees. The defendants argued that the requests were irrelevant, overly broad, and unduly burdensome. In addition, the defendants opposed the plaintiffs demand for information in a native format with corresponding metadata, claiming that a native production would be difficult and time-consuming and would reveal privileged information. The court granted some of the plaintiffs document requests stating that the benefit of the information outweighed the defendants burden, but denied other document requests as overly broad. For the document requests that were granted, the court stated that the plaintiffs requests should be produced in the form in which it is currently maintained, but in electronic format to the extent possible. AAB Joint Venture v. United States, 2007 WL (Fed. Cl. Feb. 28, 2007). In this construction litigation case, the plaintiff moved to compel discovery of s from the defendant. The defendant listed several individuals who were known to have generated related to the subject matter of the litigation. However, the defendant produced from only a few of the individuals, and the production from those individuals revealed insufficiency and gaps in the production. The defendant argued that it produced thousands of s already and that further production required restoration of back-up tapes that would cost between $85,000 and $150,000. The defendant further argued that many of the s were protected as privileged communications. The plaintiff argued the defendant had a duty to preserve and costs should not have any bearing on whether the documents should be produced. The court agreed with the plaintiff and ruled that the defendant s production of s was far from adequate. The court further ruled that cost is only one factor in ordering a motion to compel and that the court cannot relieve Defendant of its duty to produce those documents merely because Defendant has chosen a means to preserve the evidence which makes ultimate production of relevant documents expensive. As such, the defendant was ordered to restore a portion of its back-up tapes from time periods specified by the plaintiff and was ordered to bear the costs of the initial sampling. Any further production and cost allocation would be determined by the sample production. Peskoff v. Faber, 240 F.R.D. 26 (D.D.C. Feb. 21, 2007). In a suit alleging fraud, breach of fiduciary duty, breach of contract, and conversion inter alia, the plaintiff moved the court to compel the discovery of s relating to the suit. In a previous electronic document production, there were unexplained time gaps which, the plaintiff argued, suggested a complete and accurate search was not completed by the defendant. The defendant argued that he would be willing to submit his hard drive for imaging by the plaintiff, but that he would not endure the costs of production. After supplemental submissions by the parties regarding the extent of the search, the court determined the defendant only searched two of the five places where evidence may be found and that this was not a sufficient search for relevant ESI. The court also ruled that the defendant must endure the costs of producing relevant ESI contained his hard drive, citing the new Federal Rules of Civil Procedure. The court stated that accessible data must be produced at the cost of the producing party and that cost-shifting does not even become a possibility unless there is first a showing of inaccessibility. It cannot be argued, stated the court, that a party should ever be relieved of its obligation to produce accessible data merely because it may take time and effort to find what is necessary. Qantum Comm. Corp. v. Star Broad., Inc., 2007 WL (S.D. Fla. Feb. 9, 2007). The plaintiff brought an action against the sellers of a radio station, alleging breach of the purchase agreement and seeking specific performance. The plaintiff filed a motion for sanctions and default judgment based on the defendant s failure to produce key "smoking-gun" documents during 98

99 discovery. Specifically, the plaintiff noted an instance where the defendant produced an without the corresponding attachment. The defendant stated in deposition testimony that the attachment was withheld because it was not relevant to the suit. The plaintiff obtained the smoking gun and attachment, which directly contradicted the defendant s testimony, from a thirdparty. The defendant argued that it did not delete in bad faith but rather as part of an ongoing business practice to purge due to the limited amount of computer storage space. Furthermore, the defendant claimed that he did not have the and attachment prior to his deposition to refresh his memory and all testimony was given to the best of his un-refreshed memory. The court ordered monetary sanctions and default judgment against the defendant because of the discovery misconduct and other bad faith actions. The court held that the withheld s prejudiced the plaintiff since it hampered the ability of plaintiff to present its claim on the central issue of this case. A later hearing was scheduled to determine the amount of costs and specific performance damages. Stanziale v. Pepper Hamilton LLP, 2007 WL (S.D.N.Y. Feb. 9, 2007). In a case involving claims of malpractice and breach of fiduciary duty, inter alia, the defendant moved a federal court in New York to compel the production of s contained on a third-party s server. The third-party already produced other s which were relevant to the case; however, they withheld documents that may have been subject to certain privileges. The third-party argued that to disclose the s contained on the server would violate a confidentiality agreement made between the third-party and another party to the lawsuit. Furthermore, the defendant argued that there should be no cost-sharing because the documents are reasonably accessible and must be produced at the third-party s own cost. The New York judge declined to rule on the defendant s motion and instead transfer the issue to a federal judge in Delaware, stating that [a] judge who is fully familiar with the underlying litigation is in a better position to resolve such issues than a judge in a different district with no knowledge of the case. The parties did not object to the ruling and the motion was sent forth before the federal court judge in Delaware overseeing the entire litigation. Thielen v. Buongiorno USA, Inc., 2007 WL (W.D. Mich. Feb. 8, 2007). In a claim where the plaintiff brought an action against the defendant arguing violation of the Telephone Consumer Protection Act of by sending text messages to plaintiff's cell phone without his permission, the defendant filed a motion to compel the production of the plaintiff s computer. The defendant claims that in order to activate the automated text message service, a person must either text message the defendant s company or access their website to provide a telephone number. The defendant seeks information contained on the plaintiff s computer to refute claims that the text messages were sent without his permission. The plaintiff argues against producing his computer, stating that privileged information not related to the case may be disclosed. The court found that the plaintiff failed to respond to the discovery request for the computer within the discovery deadline, thereby foreclosing any objections to the request. However, notwithstanding the untimely objection, the court held that it must take steps to satisfy the discovery request without the result being a wholesale rummaging through plaintiff's filing cabinet. Therefore, the court granted the motion and ordered the plaintiff to produce his computer for inspection. The court also ordered a computer forensics expert to image the computer and to provide the full report to the plaintiff first so that he may address any privileged documents before disclosure to the defendant. Bitler Investment Venture II, LLC v. Marathon Ashland Petro., LLC, 2007 WL (N.D. Ind. Feb. 7, 2007). In a case regarding breach of contract claims, inter alia, the defendant filed a motion to compel the production of s sent to the plaintiff s damages assessment expert prior to the issuance of an expert report. The s in question were communications between the plaintiff s attorney and the plaintiff. The plaintiff s attorney forwarded these s to the expert 99

100 prior to his final report. The plaintiff argued the s were protected by the attorney-client and work-product privileges. The plaintiff also argued the s had nothing to do with the expert s opinion. The defendant argued it had a right to discover any information used by the expert which he based his opinion on for trial. The court, in granting the defendant s motion, noted that although the attorney-client privilege may apply in this situation, the s were disclosed to a third-party, destroying any privileges. The work-product privilege also did not apply because the s were intentionally forwarded from the plaintiff s attorney to the expert. Furthermore, the court conducted an in camera review of the s and determined that they were relevant and must be produced. Self v. Equilon Enter., 2007 WL (E.D. Mo. Feb. 2, 2007). In a drawn-out litigation spanning more than six years, the plaintiffs filed a motion to compel the discovery of additional electronic documents and from the defendants. The defendants already produced over 16,000 s taking hits on search terms provided by the plaintiff. The plaintiff argued that in the latest production of s, the defendants withheld or cherry-picked relevant s. The court denied the plaintiffs motion to compel, stating that they did not show that the need for further electronic discovery outweighed the burdens and costs of locating, retrieving, and producing more electronic discovery. Additionally, the court found no evidence that the defendant was cherry picking relevant s during discovery disclosure. However, the court held that if after completing their review of the produced s the plaintiffs locate any "smoking gun" s showing the defendants withheld relevant documents then the court would reconsider the denial of the plaintiffs motion. Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL (D. Minn. Feb. 1, 2007). In a discovery dispute, the defendants appealed to the district court judge the magistrate judge s order which required them to produce certain electronic evidence on back-up tapes. The defendants argued that the production of back-up tapes would be time and cost prohibitive and thus would be unable to meet the discovery deadline. The defendants argued that technological constraints beyond their control rendered compliance with the deadline impossible. The magistrate judge determined that defendants had not met their burden to establish that the information sought was not reasonably accessible because of undue burden or cost. The magistrate found that the defendants offered no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives and that those concerns cannot shield the defendants from discovery. The district court judge upheld the magistrate s denial of the deadline extension because the magistrate s ruling was neither clearly erroneous nor contrary to law. The district court judge held that discovery deadline modification might be warranted if compliance with the deadline is in fact technologically impossible. However, the district court judge chose to follow the decisions of the magistrate judge because the magistrate judge s prior decisions regarding electronic discovery disputes were thorough and well-reasoned. Cenveo Corp. v. Slater, 2007 WL (E.D. Pa. Jan. 31, 2007). In a trade secrets misappropriation case, the parties presented two differing approaches for how electronic data contained on hard drives in the defendant s possession would be produced to the plaintiff. The plaintiff requested that the hard drives be completely imaged and given to a third-party expert to search for relevant information. Under the plaintiff s approach, the expert would sign a confidentiality agreement to protect privileged information. The defendant argued, however, that the parties agree upon search terms and the defendant will provide the search results from the images of the hard drives. Agreeing with the plaintiff s method, the court ordered a third-party computer forensics expert to image and examine the hard drives. The expert will be chosen by the plaintiff and the actual imaging will take place on the defendant s premises under the supervision of an expert chosen by the defendant. Furthermore, the court ordered the expert to provide the 100

101 defendant with a report of the documents recovered. The defendant must review the documents for privileged material and thereafter produce relevant documents to the plaintiff. In re Seroquel Prods. Liab. Litig., 2007 WL (M.D. Fla. Jan. 26, 2007). In a multi-district litigation matter, the court issued a discovery order addressing several issues related to electronically stored documents. First, the court set forth the party s document collection and production obligations and ordered that all documents be produced in a TIFF format and have Bates numbering. Additionally, specific metadata fields for the documents were to be produced if practicable to the parties. The court also addressed costs and held that each party shall bear its own costs for the production of accessible data. Inaccessible data and data contained in databases were only to be produced after consultation between the parties. G.D. v. Monarch Plastic Surgery, P.A., 2007 WL (D. Kan. Jan. 24, 2007). The plaintiffs in this case brought a claim of wrongful disclosure of medical information against the defendant medical provider. The plaintiffs medical information was inadvertently disclosed when a computer was placed on the curb for trash disposal. The computer was obtained by a passerby who subsequently had the hard drive repaired. Once the computer was in working condition, it was discovered that the computer contained confidential medical information of several of the defendant s patients. The plaintiffs filed a motion to compel the production of the computer and all information contained on its hard drive. The defendant objected to the motion stating that it was an unadulterated fishing expedition and that the plaintiffs request was meant to simply 'troll' the 'electronic pond' to eliminate any skepticism regarding production. The court disagreed with the defendant s objections and granted production of the computer hard drive with some limitations. It ordered an interdependent computer forensics expert to image the hard drive and provide a report to each party of the information contained on therein. The defendant was to provide the plaintiffs with information on the computer concerning any of the plaintiffs, however the court held that any other confidential information about non-party patients and employees was irrelevant and beyond the scope of plaintiffs claims. The parties were ordered to submit a protective order concerning any confidential information discovered on the hard drive. Furthermore, the parties were ordered to share the cost of the hard drive imaging and examination. Frees, Inc. v. McMillian, 2007 WL (W.D. La. Jan. 22, 2007). In a claim involving an employer suing a former employee under the Computer Fraud and Abuse Act for downloading plaintiff s proprietary information, the plaintiff compelled the defendant to produce hard drives from a laptop that the defendant received from his new employer, as well as a hard drive from the defendant s home computer. The plaintiff argued the requested hard drives are likely sources of evidence pertaining to defendant s illegal downloading of information and data. The defendant argued the requested hard drives were acquired two years after he started working for a competitor and only contains information relevant to his new employment. The court held that the plaintiff was entitled to the information, stating that the hard drives were the most likely places where the defendant would have possibly transferred and stored the missing information. The court also indicated that although the defendant obtained the requested hard drives two years after he left the plaintiff s employment, the defendant easily could have transferred information to newly acquired hard drives and, thus, could be likely sources of evidence relevant to the plaintiff s claims. Apsley v. Boeing Co., 2007 WL (D. Kan. Jan. 18, 2007). In an age discrimination class action, the plaintiffs moved to compel the defendant to produce s relevant to the claims. The requested s covered a five year period and several hundred employees. The plaintiffs provided search terms to the defendant to reduce the amount of relevant s. The defendant argued that a production of five years of s from several hundred employees would be unduly burdensome and costly. In some situations, the defendant argued, an search of one 101

102 employee could take one person as long as an entire day to perform the search. The plaintiffs argued, however, that the benefits to the plaintiffs would be outweighed by the burden to defendant. The court found that it could not make a decision on burden versus benefit and requested additional information from the parties. The requested information included how the search would be conducted, the search terms, specific employees to be searched, who should bear the production costs, and other balancing questions. Balfour Beatty Rail, Inc. v. Vaccarello, 2007 WL (M.D. Fla. Jan. 18, 2007). In a suit alleging that the defendants conspired to compete and steal information from their former employer, the plaintiff brought a motion requesting the defendants produce any hard drives used in connection with their competing business. The defendants argued the request was overly broad and that confidential information, not relevant to the lawsuit, would be disclosed to the plaintiff. The plaintiff argued a confidentiality agreement would protect any potential confidential information from being used and that the hard drives should be produced. The court denied the plaintiff s motion because there was no indication as to specific information the plaintiff sought to gain from the hard drive data, only that the entire hard was requested. The court further stated the plaintiff did not argue that the defendants failed to produce any information necessitating the production of the hard drives. To allow the plaintiffs access to the defendant s entire hard drive without limits as to the information to be obtained would permit Plaintiff to engage in a fishing expedition. Hedenburg v. Aramark Am. Food Services, 2007 WL (W.D. Wash. Jan. 17, 2007). In a gender discrimination employment suit, the defendant moved the court to compel production of the plaintiff s home computer hard drive. The defendant argues that the home hard drive may contain information, namely s or letters to other people, which may reveal discrepancies between her testimony and statements to others regarding her actual emotional state of mind while working for the defendant. The plaintiff argues that the request is a fishing expedition for evidence and information contained on the hard drive would have little relevance to the case. The court denied the defendant s motion stating that the central claims in the case are wholly unrelated to the contents of plaintiff's computer. The court further held that the defendant is hoping blindly to find something useful in its impeachment of the plaintiff and there is not a strong likelihood that evidence would be found on the hard drive. Furthermore, the court described the defendant s request as a search warrant stating that defendant merely is searching for evidence that may not exist and the burden of such a search clearly outweighs the benefit. In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., 2007 WL (E.D.N.Y. Jan. 12, 2007). In this class action, the defendants brought a motion to compel native production of documents from the plaintiffs. During discovery, the plaintiffs made at least six productions where electronic documents were printed to paper and then scanned and converted into searchable TIFF images using optical character recognition software. This laborious process stripped all metadata references from the original files. The defendants filed a motion to compel the plaintiff to re-produce these documents natively and asked the court to order all subsequent production of electronic documents in a native format. The plaintiffs opposed the motion to compel, stating that the already produced the requested documents and to produce the documents again in a native format would be burdensome and costly. The court determined that the newly amended Federal Rules would apply to the parties; however, to require the plaintiffs to reproduce discovery already in possession of the defendants would place a substantial and costly burden on the plaintiffs. Yet, the court also ruled that the plaintiffs are on notice of the defendants request for native files and stated that any subsequent discovery should be produced in a native format. Roberts v. Canadian Pacific R.R. Ltd., 2007 WL (D. Minn. Jan. 11, 2007). In a claim relating to a train derailment accident, the plaintiff filed a motion to compel the production of an 102

103 expert report from the defendant. During the state court proceeding, one of the defendant s witnesses admitted to deleting a damaging . Subsequent to that admission, the defendant hired a computer forensics expert to determine if any had been destroyed and lost as evidence. The plaintiff now files for production of the expert s report in this federal action. The defendant argues that federal law will preempt the plaintiff s claim and, therefore, any spoliated evidence is irrelevant to the plaintiff s case. However, the court disagreed with the defendant s argument that there is no harm, no foul by the destroyed . The court held that it must insure that any tradition of destroying derailment-related documents be discovered and brought to an end. The court s order stated that the plaintiff would be able to conduct limited discovery of the expert s report by deposing the expert. Gibson v. Ford Motor Co., 2007 WL (N.D. Ga. Jan. 4, 2007). In a product liability case, the plaintiff motioned the court to compel the defendant to produce a copy of its litigation hold notice as part of discovery. The litigation hold notice had a list of the documents the defendant wanted its employees to preserve for the pending litigation. The court ordered the document did not have to be produced to the plaintiff since it was closely related to attorney-work product material. The court noted that litigation holds are often over inclusive and the documents on the notice often do not bear any relevance to the actual litigation. The court also cautioned that compelled production of this notice would encourage other companies from not issuing litigation hold notices under fear of possible disclosure and adverse consequences. WIREdata, Inc. v. Village of Sussex, 2007 WL (Wis. Ct. App. Jan. 3, 2007). In a dispute over a request for public property records under state law, the plaintiff filed a motion compelling the defendant to produce native files from a public record. The defendant produced a PDF version of the requested public record according to a decision from the lower court, but the plaintiff required native data from the document not found on a PDF and filed this motion. The plaintiff argued that the native format of the public record database was owned by the public, and the defendant could not deny access to it. The defendant argued that it would be unduly burdensome and costly to produce the document. It also argued the information sought by the plaintiff was information physically entered into the computer system by the defendant s employees and not subject to public disclosure. The court held in favor of the plaintiff since the defendant, as a public entity, did not create the document in PDF form and should produce it as viewed by the defendant. Therefore, the court held that the plaintiff had a right to access to this database for purposes of examination and copying of the source data and thereby ordered the defendant to grant the plaintiff access to its original information. Ameriwood Industries, Inc. v. Liberman, 2006 WL (E.D. Mo. Dec. 27, 2006). In a suit alleging misappropriation of trade secrets inter alia, the plaintiff sought s from the defendants containing specific communications related to the claims. After the defendants failed to produce an , which was subsequently discovered by the plaintiff, the plaintiff motioned the court for an order to compel the defendants to produce computer hard drives for imaging. The plaintiff not only requested all work-related computers, but any home computers that may have been used to transmit the trade secrets. The plaintiff argued it was entitled to the hard drives even if information was deleted since the computers might contain evidence that went to the heart of the claims. The defendants argued the costs involved would be substantial and imaging should not be completed. The court determined the data requested was not reasonably accessible because of undue burden and cost. However, the court closely examined the newly implemented Federal Rules of Civil Procedure and determined there was good cause for the plaintiffs to search the defendants hard drives since allegations that a defendant downloaded trade secrets onto a computer provide a sufficient nexus between plaintiff's claims and the need to obtain a mirror image of the computer's 103

104 hard drive. The court then provided detailed guidance for the mirror-imaging process and discovery of documents on the defendants hard drives. It instructed the plaintiff to choose a qualified computer forensics expert and required the defendants to produce all hard drives, including those from their homes. A disclosure process, including provisions regarding production of documents and privilege issues, was also ordered. Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co., 2006 WL (S.D.N.Y. Dec. 22, 2006). In an insurance dispute, the plaintiff sought to compel electronically stored information regarding two lawsuits involving the defendant, a large reinsurance company, with similar circumstances to the plaintiff s case. The defendant failed to pay its share of a settlement the plaintiff reached with one of its insured. The defendant argued the information sought could not be retrieved from its computer system since it could not segregate claims according to specialized search terms. However, the court gave the defendant s argument little merit since, [a] sophisticated reinsurer that operates a multimillion dollar business is entitled to little sympathy for utilizing an opaque data storage system, particularly when, by the nature of its business, it can reasonably anticipate frequent litigation. Yet, the court also recognized that a search of its entire database may be infeasible. Therefore, the court ordered the parties agree upon a discovery protocol to sample possible claims in the defendant s database. Williams v. Sprint/United Mgmt. Co., 2006 WL (D. Kan. Dec. 12, 2006). In an employment termination case, the plaintiffs moved the court for native file production of s which had been previously produced by the defendant in a hardcopy format. In the original production, the s had spreadsheets that were detached and provided as separate documents in their native, electronic format. The plaintiff claimed that without the native , the plaintiff was forced to match the hardcopy s with the corresponding electronic spreadsheet attachment using a correlation table created by the defendant, which caused the plaintiff to incur more time and cost. The defendant argued that the parties agreed during pre-trial conferences that any electronic discovery would be produced as TIFF images and not in a native file format. Furthermore, producing native files would increase the risk of privileged information being disclosed since native files cannot be redacted. The court reasoned that the prior production of e- mails was not a deliberate attempt by the defendant but the result of an agreement between the parties. The court held the plaintiffs failed to give an adequate reason to compel the native production and denied their motions to produce native s. See also Williams v. Sprint/United Mgmt. Co., 2006 WL (D. Kan. July 1, 2006). The Bedford, LLC v. Safeco Ins. Co. of Am., 2006 WL (Wash. App. Div. 1 Dec. 11, 2006). In a breach of contract case, the plaintiff appealed a jury decision in favor of the defendant based on the defendant s failure to disclose an attachment to an before trial. The defendant s attachment to the was only available on a backup tape which was eventually recovered and produced shortly before the trial s end. The was sent from the defendant s expert and the attachment was a draft of his expert report. The plaintiff argued it was significantly prejudiced in its claim because of the discovery delay. The defendant argued the attachment was only a draft and it was under no obligation to produce mere drafts of expert reports which were ultimately submitted to the plaintiff. The court held that there is no duty to retain all experts drafts which are eventually overwritten and submitted in a separate final form. The court also held the plaintiff was not prejudiced by the surprise draft report before the trial ended because it had a chance to cross-examine the author of the report. Wachtel v. Health Net, Inc., 2006 WL (D.N.J. Dec. 6, 2006). In a class action suit, the plaintiffs sought sanctions, including default judgment, against the defendant for failure to retain, search and produce and other electronic documents. Several discovery orders had been 104

105 issued over the last five years compelling the defendant to produce electronic records, with which the defendant failed to comply. Eventually, approximately 20,000 previously undisclosed documents were produced by the defendant after several years of discovery orders. The defendant also failed to search backup tapes for and failed to properly preserve any other during litigation. The defendant had an automated deletion program but failed to alter the program or search for any deleted on backup tapes until three years into litigation. The court held that it would not issue a default judgment as a sanction despite the defendant s illicit bad faith in discovery. However, the court allowed monetary penalties, adverse inferences, and payment of plaintiff s costs as sanctions. Flexsys Americas, LP v. Kuhmo Tire U.S.A., Inc., 2006 WL (N.D. Ohio Dec. 6, 2006). In a patent infringement suit, the defendants brought a motion to compel the plaintiff to produce electronic documents. The defendants claimed the plaintiff only provided and searched for documents related to one individual. The defendants argued they were entitled to search all documents created by every employee within plaintiff s company. The plaintiff responded it had produced all documents at issue and that a company-wide search would be costly and could not occur before the discovery deadline. The court found the parties had not come to any agreement regarding the scope of e-discovery according to the new guidelines set forth in the amended Federal Rules of Civil Procedure. As a compromise in this discovery dispute, the court ordered the plaintiff to produce all electronic documents from 10 individuals of the defendant s choosing. Exact Software N. Am., Inc. v. Infocon, Inc., 2006 WL (N.D. Ohio Dec. 5, 2006). In a collection action by the plaintiff, the defendant sought sanctions for the plaintiff s failure to produce and preserve electronic evidence. The defendant argued the plaintiff completely failed to produce adequate reasons for the non-production of electronic documents. Additionally, the defendant argued the plaintiff deleted electronic documents before and after litigation started. The plaintiff failed to respond to the allegations of deliberate spoliation. The court ruled sanctions and default were likely against the plaintiff since it completely failed to produce any adequate excuse as to why electronic evidence was not produced or preserved. However, the court ruled it could not issue a default judgment because it was unclear who was at fault for the discovery mishaps. The court found that it could not ascertain whether the discovery misconduct was due to willfulness or bad faith on the part of the plaintiff, its counsel, or both, and set a hearing at which the plaintiff would have an opportunity to show cause why it should not be sanctioned. De Technologies, Inc. v. Dell, Inc., 2006 WL (W.D. Va. Dec. 4, 2006). In a patent infringement suit, the plaintiff claimed the defendant s production of documents was insufficient in response to specific discovery requests and certain electronic documents produced in an online document database should not be allowed as evidence at trial. The defendant used an online database to produce over 500,000 electronic documents in a searchable, electronic format to the plaintiff. The database was searchable by keyword but the database did not reference or identify which documents were responsive to each discovery request. The plaintiff argued that Federal Rule of Civil Procedure 34 required the production of documents as kept in the ordinary course of business and that a searchable database did not meet this definition, requiring the plaintiff to guess which documents would be used by the defendant in response to the plaintiff s claims at trial. The court agreed with the plaintiff and held the electronic documents were downloaded into a specially created database and were not produced in a form consistent with the defendant s internal computer system. Furthermore, they found that the database did not organize the documents in a manner that was responsive to plaintiff s discovery requests and therefore could not be used at trial as evidence by the defendant. 105

106 Palgut v. City of Colo. Springs, 2006 WL (D. Colo. Nov. 29, 2006). In an age and sex discrimination dispute, the court entered a stipulated order regarding the discovery of electronically stored information. The order includes definitions of various e-discovery terms and sets forth a number of discovery protocols. The order included a mandate that all electronic documents be produced in their native formats unless otherwise agreed amongst the parties. Additionally, the court established a procedure for the parties to object to the production of any electronic documents, requiring the parties to state reasons why the documents are not accessible, why there would be an undue burden or cost, and whether there is any available information that it is willing to produce. Finally, the court ordered all electronic evidence be preserved by the parties. Thompson v. Jiffy Lube Int l, 2006 WL (D. Kan. Nov. 21, 2006). In a fraudulent sales practices case, plaintiffs requested from over 450 managers of the defendant s vehicle service stores. The plaintiffs provided several search terms to narrow the relevant search and stated that production would only cost the defendant $600,000. The court denied the motion because production of every manager s with common search terms would be too burdensome and too costly for the defendant. Some of the search terms included words such as: services, customers and dollars. Although the motion was denied the court hinted that could be compelled if the plaintiffs narrowed the scope of the inquiry. Williams, Cohen & Gray, Inc. v. CPS Group, Inc., 2006 WL (S.D. Tex. Nov. 14, 2006). On a motion to compel, the plaintiff requested production of documents from the defendant relating to all payment histories of accounts the defendant had with the plaintiff. The defendant objected to producing hard copies of these documents because of the volume involved. The court noted that electronic production should be discussed between the parties and used since there was no evidence that such production would not be reasonably accessible electronically, or that gathering and copying the information electronically will cause undue burden on the defendant. The court also cited the proposed changes to Federal Rules of Civil Procedure 26(b)(2) and stated that electronic production costs would be borne by the defendant. Johnson v. Kraft Foods, 2006 WL (D. Kan. Nov. 14, 2006). The plaintiffs motioned the court to compel the defendant to produce electronic data, including electronic databases, regarding its employees. The defendant objected generally to several discovery requests made by the plaintiffs, claiming that the discovery requests where overbroad, duplicative, and vague. Notably, the defendant objected to the plaintiffs definitions of electronic discovery terms (such as electronic database and personnel related data ) as vague and ambiguous despite the fact that the plaintiffs provided detailed definitions of each term. The defendant argued that the different attorneys examining the scope and adequacy of the requests will view the electronic data terms differently and produce inconsistent discovery results. The court overruled the defendant s objections and identified several credible sources to access an accurate legal definition of electronic discovery terms, including the Kansas electronic discovery guideline practices, the Sedona Conference guidelines, and caselaw. In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL (E.D. Mo. Nov. 13, 2006). In this multi-district litigation regarding two prescription drugs, the parties agreed to a document management plan which the court incorporated into its order. The parties established that the plaintiffs would preserve the hard drives of computers used by the plaintiffs and the plaintiffs decedents, and such hard drives would be imaged and analyzed pursuant to an agreed forensic examination protocol. The parties also decided the defendants would not be required to restore any of their backup tapes at this time, and instead, responsive electronically stored information would be collected from the defendants' active IT environment. They must preserve the thirty-five backup tapes set aside for this litigation, but may otherwise resume backup tape recycling. The plaintiffs 106

107 deferred the production format decision to the defendants and allowed them to produce data in any format that is generally searchable and manageable. The parties were unable to agree on how costs should be apportioned, the scope of discovery into electronic databases, and who should perform the forensic examination of the computer hard drives. The court determined it would decide these issues after more briefing by the parties. MacNamara v. City of New York, 2006 WL (S.D.N.Y. Nov 13, 2006). This case stems from the arrest of over 1,800 people at the 2004 Republican National Convention. The class of plaintiffs motioned the court to compel the city to produce certain electronically stored information. The plaintiffs request the electronic version of paper arrest worksheets used when booking a criminal into jail. The handwritten worksheets are normally entered into the city s electronic online booking system by someone other than the arresting officer. The plaintiffs argued they were entitled to the electronic versions of worksheets because there are often inconsistencies and omissions when information is transferred between the paper version and the electronic version. The plaintiffs had evidence of one such instance prior to the motion. The city argued that such production would merely be duplicative since they already provided the paper worksheets to plaintiffs. The court held that the plaintiffs example of inconsistent data entry would support a motion to compel the remainder of the electronic documents. However, the court further held that the production of the electronic worksheets would be subject to an attorney s-eyes-only description. Furthermore, the court held that an additional request by plaintiffs for all electronic data relating to the 1,800 arrests was vague and ambiguous. Zamora v. D Arrigo Bros. Co., 2006 WL (N.D. Cal. Nov. 7, 2006). In an employment discrimination case, the defendant produced electronic data in response to a document request. The plaintiffs electronic data consultant apparently found several problems with the data, including inconsistencies, incompleteness, and undecipherable codes. The plaintiffs then served the defendant with a subpoena requesting a 30(b)(6) deposition of a representative to explain the incomplete electronic data. The defendant argues the deposition will be duplicative of a 2004 deposition and will not uncover any new information. The court ruled, however, that the prior deponent did not answer questions regarding the production of incomplete data. The court further ruled that an additional deposition of a corporate representative would not be unduly burdensome or costly to defendant and that the deposition must take place. de Espana v. Am. Bureau of Shipping, 2006 WL (S.D.N.Y. Nov. 3, 2006). In a matter concerning the casualty of a ship off the coast of Spain, the defendant requested the court to compel from the plaintiff regarding the incident. The plaintiff is a Spanish entity that investigated the accident scene. The plaintiff claimed that electronic data sought by the defendant did not exist or was privileged. Furthermore, the plaintiff argued against production of because Spain s privacy laws prohibit discovery of private . The defendant argued that any information pertaining to the issue would be kept on the plaintiff s individual computers used by each employee and the specific computers should be subject to discovery requests. The court ruled that the plaintiff failed to properly preserve any evidence. The court noted the defendant was not asking for a ruling based on spoliation and failure to preserve evidence, but it found that it would be futile to order [the plaintiff] to conduct a diligent computer-by-computer search. The court further ruled that Spain s privacy laws are not applicable in United States Federal Courts and cannot stand as a legal basis for failure to produce documents or preserve documents. The defendant was granted leave to file a motion for sanctions. Bank of Amer. Corp. v. SR Int l Bus. Ins. Co., 2006 WL (N.C. Super. Nov. 1, 2006). The defendants sought deleted s from 400 backup tapes of Marsh, Inc., a broker of the plaintiff and non-party to the litigation. Marsh previously produced over 50,000 documents 107

108 for the litigation but the defendants argued all relevant s may not have been produced. Marsh argued, as a non-party, the defendant s request would impose an undue burden and expense. Marsh s expert from Kroll Ontrack stated such recovery and organization could cost as much as $1.4 million. The defendants argued Marsh may have only produced s responsive to the subpoena and none that related to the claims and defenses of the case. The court denied the defendants motion because such a low level of marginal utility does not justify imposing a heavy burden on a nonparty nonparties should not be penalized for having a backup system by making them produce inaccessible backup data without good cause. Additionally, the court found no evidence that Marsh had failed to produce responsive documents or that the requested s would show anything contrary to the s already produced. NOTE: The court listed this as the companion case to Analog Devices Inc. v. Michalski, 2006 WL (N.C. Super. Nov. 1, 2006), which was filed concurrently by the court. Analog Devices Inc. v. Michalski, 2006 WL (N.C. Super. Nov. 1, 2006). In a misappropriation of trade secrets matter, the defendant compelled the court to order the production of inaccessible s from over 400 back-up tapes held by the plaintiff. The plaintiff objected because the production would require an undue burden and cost and would not likely uncover any probative evidence. The court examined five factors using a straightforward application of North Carolina Rule 26. It also noted the Guidelines from the Conference of Chief Justices would provide the proper legal guidance for e-discovery issues. The court analyzed and balanced the following factors: (1) the burden and expense of production; (2) the needs of the case; (3) the amount in controversy; (4) any limitations on the parties' resources; and (5) the importance of the issues at stake. The court found the potential for discovery of probative evidence was too great to deny Defendants motion and the evidence central to the defendants case may be uncovered by the inquiry. However, the court noted the discovery costs were unknown and reserved the right to re-examine any cost-shifting issues until the final costs were determined by the plaintiff. The court required the parties to equally split the costs of restoration. NOTE: This case is the companion case to Bank of Amer. Corp. v. SR Int l Bus. Ins. Co., 2006 WL (N.C. Super. Nov. 1, 2006), which the court filed concurrently. Wyeth v. Impax Lab. Inc., 2006 WL (D. Del. Oct. 26, 2006). In a patent infringement claim, the defendant filed a motion to compel electronic documents from the plaintiff in their native file format with complete metadata instead of in the already produced TIFF format. The defendant argued it was entitled to an entire electronic database of documents in its natural state, but the plaintiff argued there was no particular need for the native files. Agreeing with the plaintiff, the court found the parties did not agree to produce native files at the pre-discovery conference. The court also noted the defendant could not show a need for the native file documents. The court used Delaware s Default Standard for Electronic Discovery as authority and stated if parties cannot agree to a file format before discovery occurs, imaged files shall be the default format. The plaintiff also argued in favor of shifting half of the discovery costs to the defendant, which included imaging a large amount of documents for a litigation database. The court denied the cost-shifting claim because the defendant is not the only party benefiting [sic] from the organization of these documents into the database. It held the plaintiff was also a beneficiary of its imaged files and it was not equitable to force the defendant to pay for the electronic organization of the opposing party s database. Ball v. Versar, Inc., 2005 WL (S.D. Ind. Sept. 23, 2005). In a contract dispute involving a trust fund, the defendant filed several motions to compel the of the two plaintiff trustees. One trustee preserved all relevant , but one trustee deleted some after litigation commenced. The trustee s relevant to the litigation was stored on his personal home 108

109 computer and his work-issued computer. The defendant argues that the trustee s home and workowned computers should be produced and the plaintiff sanctioned for the deliberate spoliation of e- mail evidence. The plaintiff argues the trustee did not destroy the in bad faith because he did not know he was supposed to preserve the . The court ruled the trustee s deletion of the was not justifiable and permitted the defendant to examine all computers used in the trustee s home for an eight-year period and of all work-owned computers used by him during the same time. Although the court declined to issue any severe sanctions, it did awards costs to the defendant. Powers v. Thomas M. Cooley Law School, 2006 WL (W.D. Mich. Sept. 21, 2006). In a claim brought by a law student under a state Persons With Disability Act, the plaintiff sought to examine the defendant s computer system with her computer forensics expert. The plaintiff claimed her poor scores on final tests were attributed to faulty software provided by the law school to assist the plaintiff with her vision disability while taking tests. The plaintiff originally sought the production of several work orders from the law school relating to the software but the school changed computer systems and during the switch some documents were deemed unrecoverable. The plaintiff argued the defendant used the system changeover as an excuse not to produce relevant documents. The defendant argued it already produced every work order they were able to recover and the other work orders could not be retrieved from the old computer system. The court found for the defendant, stating [t]his court is therefore loathe to sanction intrusive examination of an opponent's computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. The Ponca Tribe of Indians of Okla. v. Continental Carbon Co., 2006 WL (W.D. Okla. Oct ). In a tort action, the plaintiffs filed several motions requesting the production of various electronic documents. After the defendant s initial production of documents, the plaintiffs filed motions to: compel mirror images of various databases; produce native file formats of s; and create a more organized and understandable database of electronic documents already produced. The defendant argued the cost of providing a mirror image database to the plaintiff would exceed $10,000. The court found the large cost of production did not outweigh the plaintiffs interest in having the documents. The court noted, however, the parties could negotiate production of the database without the court s assistance if the plaintiffs desired to pay the costs associated with obtaining the data. In arguing for the native production of s, the plaintiffs claimed the defendant merely provided pictures of the requested s and did not provide them in an easily searchable format. The court found the plaintiffs discovery requests did not specifically ask for the s in a particular format, The defendant provided documents as asked for in the discovery requests. Lastly, the plaintiffs argued the production of s and other documents were produced as single page documents with no consideration of the organization. The plaintiffs requested the electronic documents be provided in an un-shuffled manner and produced in a more easily readable method. Refusing to place such a burden on the defendant, the court ruled the production followed accepted industry practices and the plaintiffs possessed the capabilities to organize the produced documents. Arista Records v. Tschirhart, 2006 WL (W.D. Tex. Aug. 23, 2006). In a copyright infringement case involving the illegal downloading of music from the internet, the plaintiff motioned the court to award default judgment against the defendant for deletion of key computer records. The defendant was required to produce her computer for inspection two times to determine if songs had illegally been downloaded from the internet. However, once the defendant eventually produced her computer, a computer forensics expert determined that wiping software was run shortly before and after production was ordered. The defendant argued that she merely ran a 109

110 defragmentation program which comes installed on most computers and is run automatically. However, the plaintiff argues that the defragmentation was performed at key moments in the litigation and was not indicative of a program running a monthly or weekly scan. The court held that the timeliness of the data deletion was consistent with intent to destroy. The defendant argued sanctions should be sufficient to prevent the destruction of any more evidence in the case. However, the court found no other relevant evidence existed that the defendant could destroy. Therefore, the court held that only an order for default judgment would be fair since key evidence was missing and without it, only piecemeal evidence would remain which greatly prejudiced the plaintiff in presenting its case. In Re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006). During a grand jury investigation, the court reviewed objections to the grand jury s subpoena requiring a newspaper publisher to produce four computer workstations and two hard drives. The newspaper eventually produced the four computer workstations pursuant to the subpoena but refused to produce the two hard drives. The lower court held the newspaper in contempt and imposed a $1,000 per day sanction for failure to comply with the subpoena. The newspaper filed an emergency application for review of the grand jury s subpoena with the state supreme court. The newspaper argued the subpoena s requirement for the hard drives was overly broad. It further argued that production of hard drives is much like producing an entire file cabinet filled with files. Furthermore, the newspaper stated such production would produce a chilling effect on many of the newspaper s confidential sources for news stories since their identities may be revealed during the investigation. The state countered by asserting the only information desired was the internet browsing history of several employees and assuring any confidential information would be safeguarded from disclosure. In vacating the lower court s sanctions for failure to comply, the state supreme court held that the state s particular method of disclosure is unduly intrusive in the circumstances presented. The court agreed with the newspaper s argument and further held that entire filing cabinets cannot be extracted and held by the government under the guise of a grand jury subpoena when the result could be the disclosure of confidential information vital to the newspaper s business. OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL (N.D. Cal. Aug. 31, 2006). In a patent infringement case, the defendant filed a motion to compel the production of electronic documents. The defendant claimed the plaintiff produced a disk of information containing 29,000 pages of material that were not in a proper electronic format and not searchable. The court noted the defendant s motion was ironic since earlier in the litigation the defendant produced a similar disk of information to the plaintiff that contained the same unsearchable and inaccessible electronic formatting. The plaintiff claimed it bore the cost of converting the files into a searchable database because the defendant refused to produce the information in a searchable format. The court stated the defendant s own prior refusal to convert its documents should not be rewarded in this situation by forcing the plaintiff to again expend costs in converting electronic documents. The court denied the defendant s motion. Lewis v. Sch. Dist. #70, 2006 WL (S.D. Ill. Aug. 25, 2006). In a wrongful termination claim, the plaintiff filed a motion to compel defendant to produce requested s in a searchable, accessible electronic form rather than in the already provided hard-copy form. Plaintiff argued that modern technology should allow the defendant to produce any requested s in electronic form which could be searched for key words by plaintiff. The court stated that it does not doubt that modern technology would lessen the burden of searching for relevant s, but the search would undoubtedly not be perfect. The court held that the defendant made a reasonable attempt to produce the requested s and that plaintiff has been provided with more materials than she 110

111 is rightfully entitled to. Plaintiff also argued that the defendant should have altered their usual document retention practices because they anticipated litigation. The court noted that plaintiff relied upon case law from the Southern District of New York (presumably the Zubulake line of cases) and firmly noted that such caselaw is not controlling on this Court. In re CV Therapeutics, Inc., 2006 WL (N.D. Cal. Aug. 22, 2006). In a securities litigation matter, the plaintiff claimed the defendant failed to follow a judge s order compelling the defendant to produce documents found on various backup tapes and employee hard drives. The plaintiff claimed the defendant s non-compliance came from their failure to produce documents determined as invalid through a de-duplication software filter. The defendant claimed approximately 423,000 documents were discovered during their initial search. Upon using various search terms and a deduplication process the number was reduced to 125,000 documents, of which only 4,000 were relevant. The plaintiff motioned the court to discover all 423,000 documents before the filter process was applied. The court held that the search terms chosen by the defendant were proper and the de-duplication process was an acceptable method for narrowing the document set. However, the defendant agreed to provide additional cataloging information to the plaintiff for the non-produced documents and relieved the court of deciding on this issue. Samsung Elecs. Co., Ltd. v. Rambus, Inc., 439 F.Supp.2d 524 (E.D. Va. 2006). In a patentinfringement case, the court refused to award attorney fees against the defendant for the spoliation of relevant evidence, finding the sanction inappropriate under either 35 U.S.C. 285 or the court s inherent power. However, relying on substantial documentation of the defendant s spoliation that was developed through discovery in two other cases, Rambus v. Infineon and Hynix Semiconductor, Inc., the court found the defendant implemented a document retention policy to justify destroying relevant patent infringement claims when the defendant anticipated, or reasonably should have anticipated, litigation with the plaintiff. The court found the defendant s vague litigation hold instruction to not destroy relevant documents did not satisfy preservation obligations in light of several factors, including: the large volume of documents destroyed, the extent and kind of evidence destroyed following the hold, the failure of the instruction to specify which documents were relevant to litigation, and the fact that the defendant had maintained no records of documents that were destroyed. In addition, the court offered guidance on how companies can comply with their preservation duties by modifying document retention policies already in existence. The court instructed companies to inform its officers and employees of a pending litigation and identify for them the kinds of documents considered relevant, in addition to collecting and segregating relevant documents. The court observed a company cannot make a document retention program an integral part of its litigation strategy and, pursuant thereto, target for destruction documents that are discoverable in litigation. Eastman Kodak Co. v. Sony Corp., 2006 WL (W.D.N.Y. July 20, 2006). The district court affirmed the Special Master s Report and Recommendation requesting, inter alia, to deny the defendant s motion to compel the plaintiff to more specifically correlate information produced electronically via a computer server, CD-Rom and DVD s. Asserting deprivation of due process, the defendant argued the practical impossibility of finding relevant documents hidden in the electronic equivalent of 300 million pages. After performing searches on the contested server, the Special Master found the server appeared to be organized in a usable format. Although the court recognized substantial time, effort and expense would be required to sort through the produced documents, the court found this reasonable in light of the billions of dollars at issue in the case. Ruling the documents were accessible, had been produced in the form in which it is usually maintained, and that the plaintiff was in no better position to correlate the information to the 111

112 defendant s discovery requests than was the defendant, the court denied the defendant s motion to compel. Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL (M.D. Fla. July 19, 2006). In this suit filed to enforce a patent infringement settlement agreement, the court granted the plaintiff s motion for Rule 37 sanctions against the defendant for failing to comply with the court s order to produce responsive documents. In seeking sanctions, the plaintiff argued the defendant s production efforts were sparse at best, having received only a limited number of financial documents and no . While admitting to only producing five s during the initial disclosure, the defendant maintained it had since provided the plaintiff with 2,000 pages of electronic documents from its system. The defendant argued the documents had been obtained after a detailed and exhaustive keyword search resulting in over 17,000 potentially relevant documents which had to be organized, compiled, reviewed, Bates stamped and converted into the appropriate format. However, the defendant failed to provide sworn affidavits supporting its assertion that the delay in production was necessary to avoid undue burden and expense. The court found the defendant s argument without substantial justification, and issued a sanction in the amount of $1,500 against the defendant as a reminder for parties and their counsel to cooperate when conducting litigation. Williams v. Sprint/United Mgmt. Co., 2006 WL (D. Kan. July 1, 2006). The court conducted an in camera review of 65 documents inadvertently disclosed by the defendant to the plaintiffs. The court found the documents -- spreadsheets containing statistical information -- were created at the request of the defendant s attorneys for the purpose of obtaining legal advice, and were protected by attorney-client privilege. In reaching its conclusion, the court considered several s establishing the documents had been ed directly to the defendant s counsel. In ruling the privilege had not been waived by the defendant s inadvertent disclosure, the court analyzed five factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of discovery; (4) the extent of disclosure; and (5) the overriding issue of fairness. To prevent inadvertent disclosure, the defendant converted the documents into TIFF images, allowed attorneys to review them on a computer screen, and implemented document production software to label privileged documents for inclusion within the privilege log. Citing the Advisory Committee s comments to the proposed amendments to FRCP Rule 26(f), the court considered the added volume, expense and time required to sift through electronically stored information in determining that the defendant s efforts to prevent disclosure were reasonable. In addition, since the defendant had immediately taken steps to secure the return of the spreadsheets after learning the documents had been inadvertently disclosed, the court ruled the privilege not waived and ordered the documents be returned to the defendant. Peskoff v. Faber, 2006 WL (D.D.C. July 11, 2006). The court considered the plaintiff s motion to compel the defendant to produce additional s written by or addressed to the plaintiff while employed by the defendant. During discovery, the defendant presented the plaintiff with computer disks that the defendant asserted contained all [plaintiff s] electronic files, including documents stored on his computer hard drive, , and any other [plaintiff] electronic documents. However, the discovery production did not include two years worth of s received or authored by the plaintiff from 2001 through The plaintiff argued the defendant failed to adequately explain the missing s or detail the steps taken to search for the s in the defendant s computer system or archives. Countering, the defendant maintained no documents had been withheld, and if s were missing, they no longer existed. The defendant informed the court that it subleases space from a law firm and its electronic files were stored on the law firm s server. The court observed there were several possible locations where the missing s 112

113 could be located, including the plaintiff s account at work, other employee accounts, on hard drives of company computers and on backup tapes of the law firm s server. The court ordered the defendant to provide a detailed affidavit specifying the nature of the search the defendant conducted in locating the responsive s. It further ruled the plaintiff would then have ten days to respond to the adequacy of the search described in the affidavit and at that point the court would consider whether additional searches were necessary. Trammell v. Anderson Coll., 2006 WL (D.S.C. July 17, 2006). In an employmenttermination dispute, the defendant moved to quash a subpoena issued to a computer consultant retained in anticipation of litigation. In turn, the plaintiff sought a motion to quash a subpoena requesting any and all electronic storage media including hard drives, zip drives, thumb drives, CD's, DVD's, etc. from and pertaining to any computer including desk top computers and/or laptops, used by [the plaintiff] from January 1, 2002 to the present. Before terminating the plaintiff, the defendant hired a computer consultant to analyze the plaintiff s hard drive to determine the authenticity of certain s. Following this, the defendant retained a computer forensics expert, Kroll Ontrack Inc., to create a forensic image of the hard drive, conduct a more thorough investigation of the computer media, and store the hard drive with the defendant s law firm for preservation. Although the defendant withheld the computer consultant s records, the defendant provided the plaintiff with the more in-depth report by Kroll Ontrack, insisting the plaintiff conduct its own forensic analysis if unsatisfied with the investigation. Arguing it had maintained strict chain-ofcustody procedures, the defendant submitted affidavits stating there has been no change in the data or information on the hard drive from the time it was retrieved to the present. Finding the plaintiffs failed to show evidence that information on the hard drive had been altered, the court granted the defendant s motion to quash and ruled the plaintiffs had not met their burden in demonstrating substantial need for the computer consultant s analysis or showing they would suffer undue hardship in obtaining the relevant information through other means. The court continued by granting the plaintiff s motion to quash, noting a party cannot issue a subpoena to another party under Rule 45, but should have requested production of the plaintiff s personal computer pursuant to Rule 34. Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL (D. Nev. June 5, 2006). In this case, the plaintiffs produced documents in both paper and electronic form, presenting the defendants with a CD-ROM of imaged files, numbered according to the order in which they were scanned. Although the plaintiff did not provide an index or table of contents, the plaintiff maintained that the imaged documents were formatted so that defendant could perform key word searches for information. The plaintiffs argued that they had satisfied their Rule 34 obligations by presenting the documents in the manner in which they were maintained in the ordinary course of business and were not required to organize or label the documents to correspond with categories in the defendant s discovery request. However, in recognizing that the documents had been gathered from different locations, the court found that a table of contents was reasonably necessary to determine from which entity or department the documents have been produced or the type of file in which they are contained. While the court refused to award attorney fees for delays in discovery, which were unavoidable in view of the voluminous nature of the documents in issue, the court warned the plaintiffs that failure to timely comply with the order could result in future sanctions. In re NYSE Specialists Sec. Litig., 2006 WL (S.D.N.Y. June 14, 2006). In an order addressing several discovery disputes, the court directed the defendants to produce all hard copy documents as single page tiff images, along with corresponding Opticon and Concordance load 113

114 files, and instructed that all electronic documents be produced in their native format with metadata intact. CP Solutions PTE, Ltd. v. General Elec. Co., 2006 WL (D. Conn. Feb. 6, 2006). After receiving 301,539 pages of documents in response to 131 discovery requests, the plaintiff accused the defendant of engaging in dump truck discovery tactics. The plaintiff asserted that the documents were not produced in the ordinary course of business, citing s that were separated from their attachments and pages containing lines of gibberish. The plaintiff sought to prohibit the defendant from using any documents not produced in their initial document disclosure; or, alternatively, to compel defendants to supplement its initial production by (1) identifying every document responsive to each of the plaintiff's requests; (2) organizing and labeling each responsive document to correspond to the categories of the plaintiff's requests; and (3) producing the native or original electronic documents identified as personal folder files ( PST files ). The court denied the plaintiff s motion for preclusion and refused to require the defendants to organize and label the documents produced as requested by the plaintiffs. Additionally, the court declined to order the defendants to produce s in their native format, as the defendants would be unable to sort out privileged files. However, in partially granting the plaintiff s motion to compel, the court required the defendants to re-produce the documents containing gibberish in a readable usable format. The court also required the defendants to provide the plaintiff with the information, data, or software necessary to match the s with their attachments; remarking, the fact that the attachments were created with different software programs does not provide [d]efendants with an excuse to produce the s and attachments in a jumbled, disorganized fashion. Ukiah Auto. Invs. v. Mitsubishi Motors of N. Am., Inc., 2006 WL (N.D. Cal. May 17, 2006). Alleging that the plaintiff had failed to produce all relevant documents, the defendants sought permission from the court to inspect one of the plaintiff s computers, which contained financial records pertinent to the case. The plaintiff maintained that it had produced all relevant documents from the computer to the defendant in paper form, and further, that the computer in question was no longer operational. Finding that an inspection of the computer was warranted, the court ordered a neutral expert to examine the computer at the plaintiff s expense. Miller v. International Bus. Machs., 2006 WL (N.D. Cal. Apr. 14, 2006). Alleging breach of contract and fraud claims, the defendant filed a motion for sanctions and argued, inter alia, the plaintiff failed to produce s and accompanying attachments together as previously ordered. The plaintiff claimed the attachments, produced separately as files on a disk, sufficiently referenced the corresponding s. Alternatively, the plaintiff argued he should not be compelled to determine which attachments accompanied which s. The court noted, It is not clear how [the plaintiff] can argue that he has identified specific to which the produced files were referenced, while at the same time stating that he cannot determine which attachments belong to which s. Thus, the court ordered the plaintiff to produce the relevant s with the attachments physically attached, or provide specific references (i.e., date of production, Bates and/or page numbers, and labels) which enable [the defendant] to identify which attachments belong to which s. Failure to comply with the order would result in preclusion of improperly produced s or attachments at trial. Floeter v. City of Orlando, 2006 WL (M.D. Fla. Apr. 14, 2006). In a sexual harassment case, the plaintiff requested, inter alia, production of s and a computer printout of s containing sexually explicit or pornographic materials. The plaintiff also sought to inspect computer hard drives of the defendant, his former employer. Objecting, the defendant claimed searching for this information would be unduly burdensome. The district court granted the plaintiff s requests in part, limiting production to all relevant s contained on the computer of a specified individual. 114

115 In addressing the plaintiff s request to inspect the defendant s hard drives, the court concluded the plaintiff failed to demonstrate that the defendant had withheld relevant documents stored on the computers in question. The court observed that Fed.R.Civ.P. 34 permits a party to request documents but does not give the requesting party the right to conduct the actual search. Static Control Components, Inc. v. Lexmark Int l, Inc., 2006 WL (E.D. Ky. Apr. 5, 2006). In a patent infringement case, the plaintiff sought production of a copy of a database and offered to bear the burden of extracting relevant data. The defendant claimed it had already produced relevant data from after November of 2004 and had given the plaintiff an opportunity to inspect the database for relevant information pre-dating November Additionally, the defendant explained it could not produce relevant records prior to November 2004 as that information was not text searchable and it required software that was no longer available. The magistrate ordered the defendant to produce the pre-november 2004 database to the plaintiff in a reasonably usable form stating, The Federal Rules do not permit [the defendant] to hide behind its peculiar computer system as an excuse for not producing this information to [the plaintiff]. However, finding the database contained proprietary information, the magistrate required the plaintiff to designate any extracted data as Outside Counsel Only information. Tessera, Inc. v. Micron Tech., Inc., 2006 WL (N.D. Cal. Mar. 22, 2006). The plaintiff sought to compel production of documents from a non-party in a patent infringement case. Objecting, the non-party claimed the request was overbroad, burdensome and not relevant to the issues in the litigation. In response, the plaintiff asserted the production merely required the nonparty to produce documents from existing electronic databases of documents, previously created for a government investigation. The plaintiff also argued the non-party needlessly delayed its response by failing to agree to a list of search terms proffered during the parties' meet and confer conference. The court ordered the non-party to produce on DVD-ROMS or hard drives documents derived using specific search terms from databases created for the U.S. Department of Justice investigation of the DRAM industry and any related preceding litigation in which the [non-party was] a party. In addition, the court directed the plaintiff to review the documents for responsiveness and to obtain third party permission for use of any responsive documents. In re BP Prods., N. Am, Inc., 2006 WL (Tex. Ct. App. Mar. 13, 2006) Defendant BP Products North America, Inc. filed a petition for a writ of mandamus complaining that the trial judge had abused her discretion in signing an order on February 6, 2006 compelling BP to produce by March 17, 2006 all e-data derived from backup tapes and maintained on computer hard drives under BP s control that were responsive to plaintiff s steering committee request. The Texas appellate court, which had previously denied BP s motion for emergency relief requesting a stay of the order, denied the petition. Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL (N.D. Ill. Mar. 8, 2006). In a case involving a patent infringement claim, the plaintiff sought to compel native file production of compact discs, floppy discs and DVDs. Despite the plaintiff s protests, the defendants converted responsive electronic information to TIFF images, downloaded the images onto CDs and delivered the CDs to the plaintiff. The defendants argued they satisfied their Fed.R.Civ.P. 34 discovery obligations by producing the documents in TIFF format. Objecting, the plaintiff asserted the TIFF production lacked clarity, color and metadata, made it difficult to determine which pages were part of one document, lacked clear indications as to which documents were stored together, and made quick and efficient searching impossible. Although the defendants asserted they converted the documents to TIFF format in order to add Bates numbers, the court found this argument unpersuasive. The court granted the plaintiff s motion, noting the TIFF production did 115

116 not contain all of the relevant, non-privileged information, lacked metadata, attachments and recipients, and were not produced in the usual course of business. Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F.Supp.2d 1121 (N.D. Cal. 2006). In a patent infringement case, the plaintiffs sought to compel production of documents in native format with original metadata. The plaintiffs asserted native production format was mandated by a local patent rule that required a party defending a patent infringement claim to make available "[s]ource code, specifications, schematics, flow charts, artwork, formulas, or other documentation Finding the defendants failed to offer relevant reasons why the documents should not be produced in their native format, the court granted the motion and ordered the defendants to produce the documents in their native file format, with original metadata. The court further declared the document production set shall be separately identified by Bates numbers to correspond to each aspect or element of each accused instrumentality identified in [the defendant s patent] chart. Bergersen v. Shelter Mut. Ins. Co., 2006 WL (D. Kan. Feb. 14, 2006). Alleging wrongful termination from employment, the plaintiff moved to compel production of documents previously scanned onto three CDs and produced by the defendants. Stating this production was not kept in any perceivable sequential order, the plaintiff claimed it did not comply with the usual course of business Fed.R.Civ.P. 34(b) requirement. Agreeing with the plaintiff, the court found it clear that the documents produced by [the defendants] were not produced as they are kept in the usual course of business. According to the court, the production was problematic as a receiving party may not be able to determine which specific images comprise a single document or attachments to a document since there are no staples which bind together the scanned images as they would hard copies in a file. The court noted other courts had required a producing party to label, organize or index electronic documents to make them usable by a requesting party. Methods referenced by the court included (1) noting which documents were produced from electronic files and which were scanned from hard-copy files, (2) maintaining multi-page documents as a unit, and (3) providing source information to identify document custodians. Nevertheless, the court denied the plaintiff s motion based on the plaintiff's failure to file the motion in a timely manner. Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. Feb. 6, 2006). In a defamation action alleging the defendants engaged in a smear campaign and destroyed his career, the plaintiff moved to compel the defendants to: 1) preserve electronic and paper data, 2) answer questions about their electronic data management practices, and 3) produce all accessible and responsive data. Before filing the motion, the plaintiff s counsel sent defense counsel a proposed e-discovery preservation order that included provisions for exchanging document retention policy information, identifying a deposition witness with computer system knowledge, and preserving all relevant electronic data. The proposed order also declared accessible data would be produced in its native format and inaccessible data would be identified but not immediately produced. Declining to agree to the order, defense counsel stated they would abide by their preservation obligations under the Federal Rules of Civil Procedure. They further argued the proposed order was onerous and it was inappropriate to consider production format in the absence of specific production requests. Although the court found a preservation order would be unduly burdensome and premature at that point in the litigation, the court ordered the defendants to answer the electronic data management questions as if they were interrogatories. The court also ordered the defendants to search for relevant data and provide the plaintiff with a detailed explanation of the search protocol. The court found native production was appropriate as the defendant failed to offer a substantive basis for its objection to native format. 116

117 Gilliam v. Addicts Rehab. Ctr. Fund, Inc., 2006 WL (S.D.N.Y. Jan. 26, 2006). In a class action lawsuit, the plaintiffs requested records relating to the defendants timekeeping, payroll, and policies and procedures. The defendants produced some timekeeping records but failed to produce the other requested information including data contained on 148 compact discs. The defendants claimed producing the compact discs would reveal private employee data and stated they would produce paper records containing the relevant information. Observing the paper production would comprise 46 boxes and approximately 36,000 pages, the court declared, there seems little doubt that the time and cost expenditure could be disproportionate to the interests sought to be protected. The court contrasted this with an electronic review whereby the plaintiffs could make duplicates of the computer discs quickly and inexpensively. These discs could then be reviewed in a more efficient manner and the sensitive information skipped by the reviewer(s). The court further assured confidentiality concerns would be covered in a confidentiality order. Martin v. Northwestern Mut. Life Ins. Co., 2006 WL (M.D. Fla. Jan. 19, 2006). The defendant sought to dismiss a disability benefits lawsuit on the grounds that the plaintiff, a former trial lawyer, failed to meet his discovery obligations. During discovery, the defendant suspected the plaintiff failed to produce all requested information. Upon subpoenaing the plaintiff s employee and fiancée, the defendant received electronic documents the plaintiff previously claimed did not exist. The plaintiff claimed the omission was innocent and stated he had directed his accountant to gather the requested documents and give the defendant everything. According to the plaintiff, the accountant either failed to understand the scope of the demand or the obligations it imposed. In addressing the dispute, the court declared the plaintiff s claim that he is so computer illiterate that he could not comply with production is frankly ludicrous. The court asserted the plaintiff, as an attorney, should have understood his obligations and should not have relied on his accountant to fulfill his duties. Although declining to dismiss the case, the court directed the plaintiff to reimburse the defendant its reasonable expenses, including attorney's fees. Powerhouse Marks, L.L.C. v. Chi Hsin Impex, Inc., 2006 WL (E.D. Mich. Jan. 12, 2006). In response to the plaintiffs interrogatories, the defendants produced 1,771 pages of Batesstamped documents from a database. Claiming this production was indecipherable and failed to adequately answer their interrogatories, the plaintiffs moved to compel complete production of the database information. In resolving the matter, the court stated the raw data would be more easily used in conjunction with its corresponding database. The court further determined the defendants were in the best position to accurately interpret and explain the information. Thus, the court ordered the defendants to produce the data in a more usable form, noting the Federal Rule Advisory Committee notes specified a party may be ordered to produce information to aid in interpreting and explaining the data even when the electronic information does not exist in the format requested. In re Instinet Group, Inc. Shareholders Litig., 2005 WL (Del. Ch. Dec. 14, 2005). Following the settlement of a class action shareholder lawsuit, the plaintiffs sought $1,450,000 in fees and more than $173,000 in costs. Although recognizing the plaintiffs were entitled to some fees and expenses, the defendants objected to the amount requested based on the plaintiffs attorneys inefficiency in managing the discovery process. In considering the award, the court noted that prior to settlement, the plaintiffs obtained several hundred thousand pages of discovery documents and devoted a substantial amount of time to document review. The court issued a total award of $450,000, stating the obvious inefficiencies involved in this case, highlighted by the plaintiffs' decision to pay nearly $125,000 to convert documents produced in a digital format into a paper format. Rather than simply copying the electronic media to permit the plaintiffs' lawyers working on the case to search and review the document production on a computer screen, the 117

118 plaintiffs spewed the digital production onto paper and, then, copied the paper for review. This approach both added unnecessary expense and greatly increased the number of hours required to search and review the document production. In fact, the time records submitted include a large number of hours, by multiple attorneys, spent reviewing the documents. Thus, the court must disagree with the plaintiffs' counsel's assertion that this case was a paradigm of efficient litigation, and give less weight than customary to the number of hours expended by plaintiffs' counsel. In re Priceline.com Inc. Sec. Litig., 233 F.R.D. 88 (D.Conn. Dec. 8, 2005). In a securities class action lawsuit, the parties failed to reach an agreement relating to the production of electronic files archived on servers and backup tapes. In offering the parties guidance on the issue, the court set forth nine e-discovery directives. The directives required backup tape restoration to be performed on a measured basis, with cost-shifting determinations made at each step of the process. The court also specified a production format, stating the defendants shall produce responsive information in TIFF or PDF form with Bates numbering and appropriate confidentiality designations, shall produce searchable metadata databases, and shall maintain the original data itself in native format for the duration of the litigation. The court noted, however, that exceptions may apply if native file production would be necessary to view the information contained in the file. In addressing cost shifting, the court declared it would apply the proposed analysis outlined in the proposed amendments to Fed.R.Civ.P. 26(b)(2). Holt v. Northwestern Mut. Life Ins. Co., 2005 WL (W.D.Mich. Nov. 30, 2005). The plaintiff, an emergency room physician, alleged the defendant, an insurance company, failed to produce an that contained an investigative report relating to an insurance dispute. The plaintiff requested an adverse inference instruction as a sanction for the alleged non-production. At a hearing, one of the defendant s employees testified that if the had contained substantive information, a copy would have been placed in the claim file and produced during discovery. The employee further testified it would have been unusual for substantive information to be sent in an as such information was typically attached in a memorandum and merely transmitted by e- mail. Thus, the defendant argued the was merely an envelope for the substantive report which was already previously produced to the plaintiff and not subject to the discovery request. Citing Zubulake, the court agreed with the defendant and stated, [A] corporation is not required to preserve every shred of paper, every or electronic document, and every backup tape because to require such would cripple large corporations... that are almost always involved in litigation. The court found the was merely an envelope and contained no substantive information. Additionally, the court declared that even if the non-production was improper, the plaintiff failed to demonstrate the would have been favorable to the plaintiff. In re Natural Gas Commodity Litigation, 2005 WL (S.D.N.Y. Nov. 14, 2005) decision set aside in part by 235 F.R.D. 241 (S.D.N.Y. Apr 18, 2006). In a lawsuit relating to natural gas price fixing, the plaintiffs sought to compel production of published trade data from two non-parties. The non-parties objected arguing, inter alia, that producing the information would be unduly burdensome. The court found the subpoena was not unduly burdensome with respect to one of the non-parties, and noted the non-party had already produced redacted and un-redacted electronic versions of requested spreadsheets to the government in connection with a criminal matter. The court stated, While those spreadsheets themselves will not satisfy plaintiffs' subpoenas here, they do show the [non-party] can produce this information in electronic format and still redact information about companies other than the target sources.... The court also pointed out that the non-party had an outside document management firm overseeing the production and that the plaintiff agreed to pay for associated costs. The other non-party claimed some of the historical data sought was located on old and antiquated individual computers. In addressing this issue, the 118

119 court required the parties to use a sampling protocol, perhaps searching one of the old computers, with leave to re-visit the burden vs. utility question based on information from that process. Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. 2005). In an action brought under the Lanham Act, the plaintiffs alleged defendant Haugen spread a voic message to thousands of Amway distributors falsely declaring profits from the plaintiffs products were used to support the Church of Satan. In assessing the impact of the Satanism rumors on its sales and market share, the plaintiffs hired experts to review market share databases created by an unrelated third party. The defendants sought sanctions against the plaintiffs for failing to preserve and produce these databases even after receiving several discovery requests and production orders. In response, the plaintiffs contended the following: its subscription contract did not allow it to download all of the third party database information; its computer system could not handle the entire download; the data was unhelpful in assessing damages; the defendants refused the third party s offer to make the databases available for a fee; and the discovery-related orders were not violated. The district court found the plaintiff failed to preserve data, granted the sanctions motion and dismissed the claim with prejudice. See Procter & Gamble Co. v. Haugen, 2003 WL (D.Utah Aug. 19, 2003), rev d, 427 F.3d 727 (10th Cir. 2005). On appeal, the court reversed the ruling finding it impossible to conclude that [the plaintiffs] acted with the requisite culpability to justify the sanction of dismissal. The court also noted genuine issues of material fact existed as to whether the defendants were prejudiced by their lack of access to the databases. Koken v. Black & Veatch Constr., Inc., 426 F.3d 39 (1st Cir. 2005). The defendants appealed a denial of monetary sanctions for alleged discovery violations relating to a product liability and breach of warranty lawsuit. In particular, the defendants claimed its document review costs were increased by the plaintiff s delay and/or failure to provide electronic versions of damage calculation documents. Although noting the defendants were entitled to the discovery and the plaintiff made the process more difficult than it need be, the district court declined to impose sanctions. The district court determined that expert discovery had been delayed at that time and it was unclear whether [the plaintiff] was deliberately obfuscating or merely stopped its discovery related expert activities because of the stay ". On appeal, the defendants argued the district court was incorrect as it never actually received the documents from the plaintiff. The appellate court noted the only evidence supporting this contention was an affidavit from the defendants damages expert. Absent further evidentiary support, the court found no clear error in the district court s denial of sanctions. Okoumou v. Safe Horizon, 2005 WL (S.D.N.Y. Sept. 30, 2005). In an employment related suit, the plaintiff sought sanctions against the defendants for failing to produce documents and s pursuant to an earlier production order. In response, the defendants verified they had produced all s that were responsive to the request and readily retrievable. The defendants also informed the court that archival tapes from an obsolete Lotus ccmail system may contain responsive s but such s were not readily accessible. Finding the defendants in substantial compliance with the initial production order, the court declined to award sanctions. The court, citing Zubulake, noted, [i]f plaintiff wants to pursue discovery of the s on the Lotus ccmail system she is free to do so. However, the extent to which those s are discoverable and the allocation of the cost of restoring those s requires further analysis. Cook v. Deloitte & Touche, LLP, 2005 WL (S.D.N.Y. Sept. 30, 2005). The plaintiff filed an employment discrimination lawsuit alleging violations of the Americans with Disabilities Act and other state human rights laws. After the defendant filed a motion for summary judgment, the plaintiff requested a continuance to permit time for further electronic discovery before the court ruled on the summary judgment motion. The plaintiff claimed the defendant failed to produce 119

120 certain electronic entries made by the defendant s employees. The court granted the defendant s motion for summary judgment and declared the plaintiff failed to show the defendant did not produce critical electronic entries. The defendant had also produced an characterized as a smoking gun by the plaintiff from one of its employees indicating the company wanted to replace the plaintiff. Although recognizing the existence of the , the court declared, Even if other s exist in [the defendant s] computer archives, as [the plaintiff] alleges, he has not made the showing necessary to warrant their retrieval at this late date at [the defendant s] expense, nor has he volunteered to foot the bill for doing so. Williams v. Sprint/United Mgmt Co., 230 F.R.D. 640 (D. Kan. 2005). In an employment case involving allegations of age discrimination, the plaintiffs requested native production of Microsoft Excel spreadsheets so they would be able to determine if the documents had any actual other columns or types of information available on a spreadsheet. After receiving the spreadsheets from the defendant, the plaintiffs claimed the defendant scrubbed the spreadsheet files to remove metadata without producing a log of the information scrubbed. The plaintiffs also asserted the defendant locked cells and data on the spreadsheets, thus preventing the plaintiffs from accessing those cells. The defendant admitted it had scrubbed metadata and locked certain cells but argued the plaintiffs never requested production of the metadata and claimed the metadata was irrelevant and contained privileged information. The court gave the defendant seven days to show why it should not produce electronic Microsoft Excel spreadsheets in native format and why it should not be sanctioned for its behavior. The defendant declared its actions were made in good faith, designed to prevent the plaintiffs from discovering information the Magistrate ruled undiscoverable, and maintained data integrity. Although the court did not sanction the defendant, it ordered the defendant to produce the spreadsheets' metadata and to produce "unlocked" versions of those spreadsheets. The court held, when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order. Fenster Family Patent Holdings, Inc. v. Siemens Med. Solutions USA, Inc., 2005 WL (D.Del. Sept. 20, 2005). In a patent infringement suit, the plaintiffs renewed a motion to compel the defendants to provide them with access to a corporate Intranet portal. The court had previously denied the motion relying on the defendant s representation that it would produce the requested data in a searchable electronic format. In their renewed motion, the plaintiffs declared the defendants did not follow through with this representation because they produced some of the documents in hard copy format, requiring document-by-document review of over one million pages without the benefit of electronic searching. Additionally, the plaintiffs claimed the defendants produced other large batches of documents in a non-searchable electronic format. The plaintiffs further alleged certain documents had not been produced, constituting new evidence in support of the plaintiffs motion. In response, the defendants declared they had fulfilled their obligations under the Federal Rules of Civil Procedure by producing older documents, available only on microfilm, in the format in which they were maintained. The defendants also stated they would produce the specific documents previously identified by the plaintiffs as non-searchable in "searchable form." In denying the plaintiff s motion, the court found the plaintiff failed to demonstrate an intervening change in controlling law, the availability of new evidence that was not available when the Court issued its first Order, or the need to correct a clear error of law or fact to prevent a manifest injustice. 120

121 Commodity Futures Trading Com'n. v. Equity Fin. Group, LLC., 2005 WL (D.N.J. Sept. 9, 2005). The plaintiff sought a computer backup tape containing data from two desktop and one laptop computers located in defendant Abernethy s home office. Abernethy was an employee of another named defendant, Sterling. The plaintiff alleged the tape was necessary because relevant electronic evidence may have been altered or destroyed and the tape "may contain the only remaining copy of that evidence." The plaintiff stated it needed the tape in order to compare the files on the backup tape to the original files on the computers. Objecting to the production, defendant Sterling argued the tape was a backup of a Sterling computer making it Sterling s property and not Abernethy s property. Sterling also argued the plaintiff already had the documents on the tape, the tape was not subject to a previously issued consent order, and the files on the tape contained proprietary information that could not be produced. Rejecting these arguments, the court ordered production of the tape, concluding the tape was Abernethy s property and not Sterling s property. The court also refused to accept Sterling s argument that the plaintiff had already obtained copies of the files through a forensic request and could request any deleted files it wished to have that existed on the tape. Papyrus Tech. Corp. v. New York Stock Exch., Inc., 2005 WL (S.D.N.Y. July 7, 2005). Weeks after completing expert depositions, the plaintiff sought an order directing the defendant to produce certain computer files. The plaintiff declared that its late request was immaterial given the defendant's continuing duty to supplement its discovery responses under Fed. R. Civ. P. 26(e)(2). The defendant had previously produced computer files it found relevant and a list of all of its computer files, which included the files the plaintiff currently sought. The magistrate refused to issue the order and declared, Plaintiff sought a broad array of computer data in 2004 and the defendant supplied some, objected to some, and identified all of the files in question. Plaintiff chose not to pursue the matter until now, and offers no basis either for excusing this delay or for deeming the files in question to be so significant as to justify reopening discovery more than five months after its close. Lyondell-Citgo Ref., LP v. Petroleos de Venezuela, S.A., 2005 WL (S.D.N.Y. May 2, 2005). In a dispute between two oil companies, the defendant moved to set aside an adverse inference instruction issued by a magistrate based on the defendant s failure to produce certain documents. Specifically, the magistrate had ordered the defendant to "make all Board minutes and related Board documents available in hard copy, and electronic database, for review by plaintiff's counsel." The magistrate further stated that sanctions would be entered for noncompliance with the order. After the defendant stated it would not be able to comply with the order because Venezuelan law prohibited disclosure of the relevant documents, the magistrate entered an adverse inference instruction. In appealing the magistrate s decision, the defendant claimed the documents being withheld were irrelevant to the litigation and that the defendant did not possess the requisite culpable state of mind for such a severe sanction. The court noted the defendant did not provide precise reasons for refusing to produce the documents and did not attempt to narrow the scope of withheld documents. Upholding the magistrate s adverse inference instruction, the court declared, the detrimental effect of [the] defendant's failure to produce documents on [the] plaintiff is the same regardless of [the] defendant's reasons for refusing to produce them. Jinks-Umstead v. England, 227 F.R.D. 143 (D.D.C. 2005). In a case involving discrimination allegations against the U.S. Navy, the court granted a new trial to allow the plaintiff to present its case using new evidence which the defendant initially claimed it no longer had and did not produce during discovery. At trial, after the defendant produced this information 1,400 pages of reports generated from a database for the first time, the court granted the plaintiff s motion for a new trial and for additional limited discovery. After the court granted the motion, the plaintiff filed a series of 121

122 related post-trial discovery motions. The plaintiff requested, inter alia, compliance with an earlier order to provide access to the defendant s database for review by either the plaintiff s counsel or a computer technology consultant, to determine if information could be retrieved from the database. The defendant argued it had given the plaintiff access to the database during a specified time, but the plaintiff failed to accept the offer. The court declined to analyze whether the plaintiff forfeited its database inspection opportunity because new deposition testimony of one of the defendant s employee s indicated the information could be retrieved by specific data queries. Based on this testimony, the court ordered the defendant to query the database, retrieve the relevant information, and produce it to the plaintiff within 60 days of the order. See also Jinks-Umstead v. England, 2005 WL (D.D.C. Dec. 07, 2005)(Distinguishing Morgan Stanley decision in concluding adverse inference instruction not appropriate where defendant did not act with evil intent, bad faith, or willfulness. ). Green v. Baca, 225 F.R.D. 612 (C.D.Cal. 2005). A former county jail detainee filed a motion for fees and costs, claiming the county failed to produce computer-based records relating to an overdetention claim. Despite persistent questioning by the court and orders requiring the county to provide the requested information, the county did not inform the court or the plaintiff about the computer-based records for nearly nine months. In its defense, the county argued the plaintiff did not make a good faith effort to narrow the scope of its discovery request. The court rejected this argument and stated production would not have occurred absent court intervention, even if the plaintiff had acted in good faith. The court awarded $54,375 in attorney fees and costs and declared the plaintiff s efforts to obtain discovery were unduly complicated and extraordinarily delayed by the failure of the county and/or its counsel to investigate promptly and effectively the records available, both in hard-copy and computer-based formats, regarding such over-detentions. State v. Butler, 2005 WL (Tenn. Crim. App. Mar. 30, 2005). In a case involving child pornography allegations, the state appealed from an order requiring it to provide the defendant with a copy of the defendant s hard drive, along with copies of the alleged child pornography that formed the basis for the state's case. The state argued that it could not allow defense counsel to take a copy of the computer hard drive because a state sexual exploitation statute did not contain any exemption for defense counsel to be given child pornography. The state also declared that it would accommodate counsel and its computer experts by allowing them to examine a mirror image copy of the hard drive while it remained in the state s custody. On appeal, the court affirmed the trial court s order, holding that the defendant was entitled to a copy of the hard drive. The court further noted that providing the alleged pornographic evidence to defense counsel under a court protective order did not violate the state's sexual exploitation of a minor statutes. United States v. Merck-Medco Managed Care, L.L.C., 2005 WL (E.D. Pa. Feb. 2, 2005). Based on the defendants prior discovery conduct, the plaintiffs filed a motion to modify a case management order, establish discovery deadlines, and appoint a special master or neutral consultant. A month after the discovery deadline, the defendants completed their electronic document production with the exception of documents withheld as potentially privileged, 13 additional boxes, and corrupted electronic data that was being restored. At that time, the plaintiffs sent a letter to the defendants stating the completed document production was incomplete because several major technical defects existed, including hard drive errors and files containing questionable or missing data. The defendants denied knowledge of the defective document production. The court found the [d]efendants have been dilatory in their disclosure of these defective files, costing [the plaintiffs] unnecessary time and expense. Consequently, the Court admonishes [the defendants] for its discovery practices, and reminds [the defendants] of its obligation to this Court to contact it when discovery issues arise. The court determined the 122

123 defendants conduct had prejudiced the plaintiffs and granted the motion to amend the order, noting that further violations may result in sanctions. Declining to appoint a special master, the court stated the current magistrate was capable of resolving any technical discovery disputes but declared the parties could hire a neutral technical consultant at their own expense. Streamline Capital, L.L.C. v. Hartford Cas. Ins. Co., 2005 WL (S.D.N.Y. Jan. 11, 2005). The defendant moved to compel the production of s, previously withheld by the plaintiff on the grounds of attorney-client privilege. Prior to this motion, the defendant had filed a motion for sanctions, claiming key plaintiff witnesses had systematically deleted relevant s. In response, the court had directed the plaintiffs to consent and allow Yahoo and Microsoft to release the e- mails, deliver them to the plaintiff s counsel for privilege review, and produce the remaining s to the defendant. See Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL (S.D.N.Y. Nov. 19, 2004). In the current motion, the defendant argued the plaintiff waived privilege by failing to produce its privilege log within the timeframe specified in the scheduling order. The court determined a waiver was not justified as the plaintiff was not prejudiced by the production of the log five days late, especially in light of the expedited nature of the process. The court also specifically addressed some of the disputed s. It ordered the plaintiff to reproduce a nonredacted copy of an that had previously been produced in redacted form finding an explanation for the redacted copy did not exist. The court also instructed the plaintiff to produce e- mails to or from a non-employee, finding insufficient evidence to support the plaintiff s argument that the party was acting as its agent. Finally, the court declined to order production of a legal assistant s s but required the plaintiff to supply an affidavit confirming the legal assistant s role. Icu Med., Inc. v. B. Braun Med., Inc., 2005 WL (N.D.Cal. Jan. 4, 2005). The defendant sought an order compelling the plaintiff to adequately search for and produce all non-privileged documents. Upon reviewing information submitted by the parties, the magistrate judge ordered the plaintiff to search all computerized files, s, voice mails, work files, desk files, calendars and diaries, and any other locations and sources if materials of the type to be produced might plausibly be expected to be found there. The magistrate also ordered the plaintiff to produce all nonprivileged documents, along with a written list setting forth each specific source and location searched as well as the individuals conducting the search and their areas of search responsibility. In addition, the plaintiff was to provide a list describing the specific source for each produced item and a list of items withheld on the basis of privilege. The magistrate further required the plaintiff to confirm it had searched all locations potentially containing this material and produced all nonprivileged documents. Compuware Corp. v. Moody s Investors Servs., Inc., 2004 WL (E.D.Mich. Dec. 15, 2004). The defendant requested clarification of a discovery order and asked the court to order the plaintiff to sort through a catalog of tens of millions of documents to separate the relevant from non-relevant documents. The defendant s original request had called for [a]ll documents produced by [the defendant] to IBM in any litigation. The plaintiff contended it had satisfied this request by offering to provide the defendant with a $40,000 set of portable computer disks containing all of the documents produced to IBM in litigation. Reviewing the matter, the court noted the parties inability to agree upon discovery matters highlight[ed] attempts by both sides to needlessly delay and complicate discovery. Despite this, the court stated it would not order the plaintiff to produce fewer documents than the defendant initially demanded. As such, the court denied the defendant s requests to narrow the catalog of data to documents relevant in this litigation. In re Plastics Additives Antitrust Litig., 2004 WL (E.D. Pa. Nov. 29, 2004). The plaintiffs filed a class action antitrust lawsuit alleging price fixing in violation of various federal 123

124 statutes. The plaintiffs offered a proposed scheduling order, requesting the defendants produce all relevant data in an electronic format and provide technical assistance for understanding the data. The defendants objected, arguing the proposed order was excessively burdensome and did not place a similar burden on the plaintiffs. The court granted the plaintiffs proposed scheduling order in part, finding that both parties data must be produced electronically to the extent reasonably feasible. However, the court did not require the defendants to provide technical assistance to the plaintiffs, stating [u]nless otherwise agreed upon, interpretations of data produced through discovery should be obtained through traditional discovery outlets and through the hiring of expert witnesses. BASF Fina Petrochemicals Ltd. Partnership v. H.B. Zachry Co., 168 S.W.3d 867 (Tex. Ct. App. 2004). In a breach of contract action, the defendants subpoenaed electronic data from a non-party. The non-party responded by producing 30,000 s and attachments, 70 megabytes of data, 8,000 spreadsheets, and hard copy documents. The non-party requested legal fees and costs from the defendants for collecting, reviewing and producing this data based on a state statute requiring a party to reimburse a non-party for reasonable production costs. The non-party argued the costs and attorneys fees were an undue burden or expense they suffered as a result of responding to the defendants subpoena. The trial court awarded the non-party production costs but denied attorneys fees, on the grounds that the statute excluded attorney fee awards. On appeal, the appellate court affirmed and held the statute did not include attorney s fees as part of production costs and the attorneys fees were not an undue burden or expense, absent a showing that the requesting party did not take reasonable steps to limit the scope of discovery. Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL (E.D.La. Oct. 13, 2004). The plaintiff sought to compel discovery from the defendant, including information pertaining to when the defendant received a prescription for and distributed a certain drug. The defendant objected on the ground that privacy laws protected the information and that the information would be too burdensome to collect. The court determined that the request would only be unduly burdensome if the defendant had to manually retrieve the data. In this case, the court found the data would be easily retrievable because it could be produced from a computer system. The court ordered the defendant to determine which information must be retrieved manually and which information could be produced from a computer system. After receiving this information from the defendant, the court ordered the defendant to produce all of the responsive data that could be produced without identifying patient specific information. If the data had to be manually produced, the court ordered the parties to agree upon a sampling process. Securities and Exch. Comm n v. Beacon Hill Asset Management LLC, 231 F.R.D. 134 (S.D.N.Y. 2004). Alleging various violations of the Securities Exchange Act, the SEC moved to compel production of numerous electronic documents previously withheld on the grounds of attorney-client and work-product privilege. Among the documents requested by the SEC were files attached to privileged s. The defendant claimed the attachments were drafts of attorney comments and need not be produced. Ordering the defendant to produce the attachments, the court declared the defendant had not identified which documents fell within the privilege. The defendant also protested production of a computer-created Contact List as it had not been identified as privileged until three weeks after the privilege index deadline. The defendant claimed the list did not exist because it had not been printed to paper until three weeks after the deadline for producing privileged document indexes. The court rejected this argument as frivolous, asserting that Fed.R.Civ.P. 34(a) has included electronic data as being part of a Rule 34 request for more than 30 years. The court declared, [t]he fact that the data has not been printed out does not mean that the document does not exist [otherwise] any party could avoid producing damaging 124

125 documents through the simple expedient of storing them on electronic media and never printing them out. Nicholas v. Wyndham Int l, Inc., 373 F.3d 537 (4th Cir. July 2, 2004). On behalf of their daughter, the plaintiffs filed an action in the Virgin Islands against a hotel chain, alleging that one of the hotel s employees had molested the plaintiffs daughter. In response, the defendants had a subpoena issued in Virginia for the deposition of a nonparty corporation owned by the plaintiffs. The subpoena also ordered the corporation to produce any relevant documents, including s relating to the action. After the plaintiffs did not respond to the subpoena or appear for the deposition, the defendant sought to compel the corporation s deposition and the document production. The plaintiff moved for a protective order. Determining that the defendant s discovery requests were cumulative and duplicative, unduly burdensome, and harassing, the district court granted the protective order to the plaintiffs company. On appeal, the appellate court affirmed the district court s decision noting that the [p]laintiffs had already produced some 400 pages of e- mails and they remain under continuing obligation to supplement their earlier productions. In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004). In a suit involving the criminal investigation of state legislators and caucuses, the trial court issued a subpoena ordering the Legislative Technology Service Bureau (LTSB) to produce backup tapes for 54 government servers or, as an alternative, to produce extracted documents for certain individuals. The trial court defined documents to include electronic files, s, recycle bins, temporary Internet files, and image files. On appeal, the LTSB objected to the subpoena asserting, among other things, that the trial judge abused his discretion by issuing an overly broad and unreasonable order. The Wisconsin Supreme Court determined that the subpoena was overbroad because it compelled production of computer data from an entire branch of government rather than requesting specific topics, document types, or time periods. In quashing the subpoena, the court stated that [b]ecause the records sought are computer records, a key word search would not have been too difficult to incorporate in the subpoena. See also In re John Doe Proceeding, 689 N.W.2d 908 (Wis. 2004) (Denying motion for reconsideration). In re 3817 W. West End, First Floor Chicago, Illinois 60621, 2004 WL (N.D. Ill. May 27, 2004). In a case involving tax fraud, the government asked the court for permission to seize and search a home computer hard drive and disks for evidence. Although the court authorized seizure of the computer, it conditioned the search upon the government submitting a search protocol, outlining the search methods that it would use in order to ensure that irrelevant, private documents were excluded from the investigation. The government objected to the court s order asserting that the court could not regulate the manner in which the computer was searched. In a subsequent ex parte proceeding, the court rejected the government s claim, declaring that a magistrate judge can require the government to set forth computer search protocol in order to ensure constitutionally protected privacy rights. The court concluded that the search protocol was necessary in the context of computer searches, where the volume of intermingled documents may be substantial and there are tools to focus those searches that are unavailable for searches of hard copy documents. In re Lowe's Cos., Inc., 2004 WL (Tex. App. May 18, 2004). In a personal injury lawsuit, the trial court granted the plaintiff s motion for an order compelling production of the defendant s computer database. Specifically, the trial court ordered the defendant to bring or have access to a computer at the defendant s deposition that could search, sort, and print any database information that the plaintiff s counsel might request. The defendant objected to the order claiming that the request was overbroad and argued that producing the entire database electronically would give the plaintiff unfettered access to privileged or irrelevant information. Ruling in favor of the defendant, 125

126 the appellate court declared that requests for information that are not reasonably tailored as to time, place, or subject matter amount to impermissible fishing expeditions. Finding the discovery order overbroad, the appellate court issued a writ of mandamus, vacating the portion of the order that required production of the database. Jicarilla Apache Nation v. United States, 60 Fed. Cl. 413 (Fed.Cir. 2004). Alleging that the government mismanaged trust funds, the plaintiff moved for a confidentiality agreement and protective order. Determining that good cause existed for approval and entry of the order, the court issued specific procedures for the production of electronic records. In defining records that needed to be produced, the court included computer or network activity logs, data, databases, images, e- mails, spreadsheets, and metadata. The court also determined that if the parties provided access to electronic data rather than making actual copies of it, the parties should designate which electronic records are available for production by categorizing them in writing by record, category, search parameters, or other reasonable methods. In addressing production format, the court directed the parties to produce records in the format in which that party routinely uses or stores them, provided that electronic records shall be produced along with available technical information necessary for access or use. If the requesting party is unable to access or use an electronic record, the court indicated it may request that the responding party provide a paper version of or underlying source data for the electronic record. In re Pemstar, Inc. Secs. Litig., Civ. No (DFW/SRN) (D. Minn. Apr. 23, 2004). In a securities fraud class action lawsuit, the plaintiffs filed a motion to compel production of spreadsheets, electronic documents and databases in native format. In support of its argument, the plaintiffs declared that the usual course of business requirement set forth in Fed. R. Civ. P. 34 should be interpreted as requiring production of the data in native format. The defendants claimed that the production format should be either paper, TIFF or PDF and argued that Fed. R. Civ. P. 34 does not require native production and TIFF production would adequately address any of the plaintiffs concerns about retaining metadata and file structure. The court ordered the defendants to produce a sub-set of documents in native format, stating that production of electronic discovery in native format is appropriate, feasible, and important under the circumstances of this case. The court further noted that in this case the substantive allegations were based upon an employee s native Lotus Notes file, making it most useful to the fact finder to view, understand, and step into the shoes of the information source that actually provided the alleged knowledge and access. Zakre v. Norddeutsche Landesbank Girozentrale, 2004 WL (S.D.N.Y. Apr. 9, 2004). The plaintiff moved to compel further discovery of two compact disks. One of the disks included over 200,000 s, and the other disk contained over 4,000 offline s. Although the defendant had already searched the disks for privileged s, it had not reviewed them for responsiveness to the plaintiff s specific document requests. The plaintiff argued that the defendant did not satisfy its burden of production under Rule 34(b), which requires a responding party to produce documents as they are kept in the usual course of business. The defendant responded that it had satisfied this burden by providing all of the s in a text searchable format, which allowed the plaintiff to search for single words or phrases or combinations of words or phrases. The court accepted the defendant s argument and determined the defendant was not obligated to provide more than the text searchable compact disks. In re Verisign, Inc. Sec. Litig., 2004 WL (N.D. Cal. Mar. 10, 2004). In a class action securities lawsuit, the plaintiffs sought to compel production of electronic documents in electronic form. The magistrate judge granted the order, specifically stating that a tiff document production was insufficient and ordered the defendants to produce the documents in a searchable electronic format such as a native.pst format that included metadata. The defendants objected to the 126

127 magistrate s order, arguing that production in native format rather than in tiff format was contrary to Fed.R.Civ.P. 34. The district court judge rejected this argument and declared the Rules required [the defendants] to produce responsive electronic documents in their native.pst format if that is how they were stored in Defendants usual course of business. Northern Crossarm Co. v. Chemical Specialties, Inc., 2004 WL (W.D.Wis. Mar. 3, 2004). The plaintiff sought to compel production of 65,000 pages of in electronic form, claiming that Rule 34(a) of the Federal Rules of Civil Procedure requires that the defendant put electronic information into a reasonably usable electronic format. The defendant, who had already produced the documents in paper form, objected to the request, claiming that compliance with plaintiff s request would be unfairly time consuming and expensive. Holding that the plaintiff had misinterpreted Rule 34, the court refused to grant the plaintiff relief. The court stated that neither the letter nor the spirit of Rule 34 mandates that a party is entitled to production in its preferred format. Instead, producing electronic information in a format that mimics the electronic format is sufficient. The court also added that when a party specifically requests the production of electronic information in a specific electronic format, then the respondent cannot simply ignore the request: it must comply, compromise, or seek court protection. Because the plaintiff did not explicitly request production in an electronic form at the time the request was made, the court did not require the defendant to re-produce the in an electronic form. Ranta v. Ranta, 2004 WL (Conn. Super. Feb. 25, 2004). In a divorce proceeding, a superior court judge ordered the plaintiff to stop using, accessing, turning on, powering, copying, deleting, removing or uninstalling any programs, files and or folders, or booting up her lap top computer The order also directed the plaintiff to hand over all floppy disks, CDs, zip files or other similar types of computer storage devices. The judge further required the plaintiff to turn in her laptop to the court clerk s office. Both the plaintiff and the defendant were instructed to share equally all costs associated with hiring a computer forensics expert to inspect the laptop. Additionally, the defendant was required to buy a new laptop for the plaintiff. Super Film of Am., Inc. v. UCB Films, Inc., 219 F.R.D. 649 (D. Kan. 2004). In a collection action, the defendant moved to compel the plaintiff to produce electronic data including , spreadsheets, and databases. The plaintiff argued that it could not be compelled to produce the documents because it did not have control of the documents as required by FRCP Rule 34(a). The court determined that under Rule 34(a), the plaintiff possessed the requisite control because the plaintiff had the right, authority, or ability to obtain the requested document. The plaintiff further contended that it had produced all electronic documents off of its two computer systems that were within its knowledge and expertise and offered to allow the defendant s technicians to inspect the computers. The defendant rejected this offer stating that it would unreasonably shift the discovery burden and expense to the defendant. The court agreed with the defendant, noting that the court cannot relieve a party of its discovery obligations based simply on that party s unsupported assertion that such obligations are unduly burdensome. The court further found that the plaintiff did not make the required showing that complying with the defendant s request would unduly burden the plaintiff in terms of time, money and procedure. Thus, the court ordered the plaintiff to produce the electronic documents within 30 days. Cisco Sys., Inc. v. Alcatel USA, Inc., 301 F. Supp.2d 599 (E.D. Tex. 2004). The plaintiff sued the defendant, a competitor, for antitrust violations, and the defendant counterclaimed declaring that it owned the allegedly misappropriated property. The plaintiff moved to dismiss the counterclaim on res judicata principles given that the defendant s allegations were the subject of a prior litigation that had been dismissed by the trial judge. In response, the defendant argued that the plaintiff s late production of volumes of electronic data contained on back up tapes prevented the defendant 127

128 from bringing its claim in the first lawsuit. Rejecting this argument, the court concurred with the trial judge in the first case and gave the defendant no allowances for having sat on the information for nine months after it was finally made available to the defendant. As such, the court dismissed the defendant s counterclaim on the grounds that it was barred by res judicata. Marcin Eng g, L.L.C. v. Founders at Grizzly Ranch, L.L.C., 2003 WL (D.Colo. Dec. 18, 2003). The plaintiff brought suit for payment of civil engineering services provided to the defendant and moved for summary judgment. The defendant moved to deny summary judgment based on the need to reopen discovery, claiming that the plaintiff intentionally withheld computer data that was relevant and material to defendant s claims. The withheld data included the computerized versions of the plaintiff s work product, of which the defendant had already obtained hard copies. The court did not allow the defendant to reopen discovery because the defendant did not allege that the plaintiff s production was deficient (because it omitted the computerized versions) until nearly five months after the discovery cut-off. The court stated that the defendant was dilatory both in failing to review Marcin s hard copy work product when it was timely produced and also in failing to inform Marcin and the court that it believed the production was incomplete. The plaintiff counterclaimed for sanctions against the defendant, stating that the defendant failed to produce certain documents responsive to the plaintiff s discovery requests, including an that terminated the plaintiff from the project. The defendant asserted that it diligently searched for the e- mail but could not find it. Based on defendant s diligent attempt to locate the documents, the court did not impose sanctions for failure to produce the documents. In re Honeywell Int l Sec. Litig., 2003 WL (S.D.N.Y. Nov. 18, 2003). In response to a subpoena, the defendant s financial auditor, a non-party to the securities suit, produced several thousand documents in hardcopy. The plaintiffs complained that they were unable to review the documents and sought an electronic version of these documents, or alternatively a complete hardcopy set produced in the order they are kept in the ordinary course of business, specifically claiming that the documents were produced in a way that made it impossible to determine which attachment belongs with a particular document. The auditor claimed that it had provided a complete index for the documents and attachments and that electronic copies were only accessible with the aid of its proprietary software. The court found that the auditor s production was insufficient because it was not produced as kept in the usual course of business and ordered the auditor to produce its documents in electronic form. United States v. First Data, 287 F. Supp.2d 69 (D.D.C. Oct. 31, 2003). In directing a Scheduling and Case Management Order, the court ordered limits on paper and electronic document discovery. Specifically, the court instructed the parties to produce documents in either hard copy form, or, in the case of electronic documents, in the native electronic format (or a mutually agreeable format). Renda Marine v. United States, 58 Fed.Cl. 57 (Fed. Cl. 2003). In a government contract suit, a dispute arose regarding both parties duties to preserve evidence. Specifically, the plaintiff moved the court to compel access to the defendant s hard drives, backup tapes, and systems, alleging that the defendant did not search any hard drives or backup tapes in preparing its response to the plaintiff's document production requests. The defendant denied these allegations. The plaintiff further alleged that the defendant routinely deleted even after commencement of the suit and moved the court to sanction the defendant for such spoliation of evidence. The court held that, upon notice that litigation might occur, the defendant had a legal obligation to preserve evidence related to the plaintiff's claim. The court directed the defendant to produce, at its expense, backup tapes created after such notice and to provide the plaintiff with access to the requested hard drive. The court further ordered the defendant to produce backup tapes pre-dating notice of 128

129 the suit at the plaintiff's expense. In a subsequent decision, Renda Marine v. United States, 62 Fed. Cl. 371 (Fed. Cl. 2004), the court determined s sent to and from an attorney in the defendant s general counsel office were privileged even after they were forwarded to non-attorneys in the agency. Giardina v. Lockheed Martin Corp., 2003 WL (E.D.La. Mar. 14, 2003). In an employment discrimination suit, the plaintiff s discovery requests sought a list of all non-work related Internet sites accessed with sixteen different company computers. The defendant objected to this request as overly broad and unduly burdensome as it would require creation of detailed and lengthy reports that would take many hours to compile. The magistrate judge granted plaintiff s motion to compel and awarded attorney fees and the District court affirmed. Lakewood Eng g v. Lasko Prod., 2003 WL (N.D.Ill. Mar. 14, 2003). In a patent infringement suit, the plaintiff produced and other electronic documents after the close of the discovery period. The court found that while the plaintiff did not engage in a good faith effort to produce all requested discovery in a timely manner, the cost to the defendant was minimal and therefore refused to issue sanctions. To the extent that it had not already done so, the plaintiff was ordered to produce all s generated or received by the inventor relating to the patent at issue. Zhou v. Pittsburgh State University, 2003 WL (D.Kan. Feb. 5, 2003). In an employment discrimination suit, the plaintiff sought to compel the defendant to produce computer generated documents (instead of typewritten documents compiled by hand already produced) reflecting the salaries of defendant s faculty. Relying on the Advisory Committee Notes to F.R.C.P. 34, the court stated, [T]he disclosing party must take reasonable steps to ensure that it discloses any back-up copies of files or archival tapes that will provide information about any deleted electronic data. The court granted the plaintiff's motion to compel and ordered the defendant to disclose all data compilations, computerized data and other electronically-recorded information reflecting the salaries of defendant's faculty. The court further ordered the parties to preserve evidence that they know, or should know, is relevant to the ongoing litigation, including preservation of all data compilations, computerized data and other electronically-recorded information. McPeek v. Ashcroft, 212 F.R.D. 33 (D.D.C. 2003). In its August 1, 2001 Order, the court ordered the defendant to search certain backup tapes to assist in ascertaining whether additional searches were justified. After completing this backup tape sample, the parties could not agree whether the search results produced relevant information such that a second search was justified. The magistrate stated, [t]he frustration of electronic discovery as it relates to backup tapes is that backup tapes collect information indiscriminately, regardless of topic. One, therefore, cannot reasonably predict that information is likely to be on a particular tape. This is unlike the more traditional type of discovery in which one can predict that certain information would be in a particular folder because the folders in a particular file drawer are arranged alphabetically by subject matter or by author. After examining the likelihood of relevant data being contained on each of the backup tapes, the magistrate ordered additional searches of selected backup tapes likely to contain relevant evidence. United States v. Holihan, 236 F. Supp.2d 255 (W.D.N.Y. 2002). The defendant, who was charged with embezzling bank funds, moved for the production or, alternatively, the suppression of electronic evidence allegedly withheld by the government. Among other things, the defendant requested a history of the bank s computer terminal sign on and sign off times, as well as daily logs of on-line computer entries. In response to the request, the government contended that it had fully complied with discovery and that the documents requested by the plaintiff were not in the government s possession. Although the government stated that it would attempt to locate the documents by inquiring with the relevant agency or the bank, it failed to demonstrate that it had 129

130 done so. As such, the court granted the defendant s motion to compel the production of documents that the government could obtain upon a diligent inquiry of the appropriate agency or the bank. York v. Hartford Underwriters Ins. Co., 2002 WL (N.D.Okla. Nov. 4, 2002). In a case alleging bad faith in processing an insurance claim, the defendant opposed the plaintiff s 30(b)(6) deposition request on the subject of defendant s use of a claims adjusting software program called Colossus. The court found that the defendant failed to demonstrate that the Colossus program was proprietary or confidential and ordered that the plaintiff should be given the opportunity to discover what data was inputted into "Colossus" concerning her claim. The court also ordered the defendant to provide a Rule 30(b)(6) witness to testify to the use of the Colossus program. Granting part of the defendant s motion for a protective order, the court held that the nature and extent of the defendant's use of "Colossus" may be confidential and entitled to protection from third parties. Eolas Technologies Inc. v. Microsoft Corp., 2002 WL (N.D.Ill. Oct. 18, 2002). In a patent infringement suit against Microsoft, the parties engaged in extensive motion practice, both on dispositive summary judgment issues and on various discovery issues. With regard to one discovery motion aimed at obtaining information which the defendant alleged was outside the scope of the issues in the case, the court restricted discovery to spreadsheet data regarding licenses, revenue and profitability of accused server versions of Windows 2000 and Windows NT 4.0 operating system software with Internet Explorer. With regard to another discovery motion, addressing whether certain messages in a chain of messages must be produced, the court ordered the defendant to produce certain s to and from one key individual so that the court could analyze the documents in camera and then make a determination as to whether the plaintiff is entitled to receive them in an unredacted form. Jones v. Goord, 2002 WL (S.D.N.Y. May 16, 2002). The plaintiffs, prison inmates bringing suit against the New York State Corrections Commission for prison overcrowding, requested the production of six different electronic databases maintained by the New York state prison system. The plaintiffs claimed that the electronic information would be more valuable than the already produced hard copies because the information would be more manipulable. The court refused to compel discovery of the databases because the burden of the proposed discovery outweighed its likely benefit, particularly in light of the plaintiffs failure to seek discovery in a timelier manner and the vast amount of material that had already been produced in hard copy. The court stated, As electronic mechanisms for storing and retrieving data have become more common, it has increasingly behooved courts and counsel to become familiar with such methods, and to develop expertise and procedures for incorporating electronic discovery into the familiar rituals of litigation. Kaufman v. Kinko s Inc., 2002 WL (Del. Ch. Apr. 16, 2002). The court granted the plaintiffs motion to compel the defendants production of certain messages retrievable from the defendant backup system. The defendants argument that the burdens of the retrieval process outweighed any evidentiary benefit that the plaintiffs would obtain from the documents was unpersuasive. Instead, the court stated, Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system cannot be sufficient to defeat an otherwise good faith request to examine the relevant information. United States Fidelity & Guaranty Co. v. Braspetro Oil Servs. Co., 2002 WL (S.D.N.Y. Jan. 7, 2002). In a discovery dispute concerning the potential waiver of privilege with respect to materials provided to defendants' expert witnesses, the court ordered the defendants to produce all materials provided to their experts privileged or unprivileged, whether in paper or electronic form. 130

131 Braxton v. Farmer s Ins. Group, 209 F.R.D. 651 (N.D.Ala. 2002). In a class action brought under the Fair Credit Reporting Act, the plaintiffs sought s from non-party individual insurance agents of the defendant s insurance company. The defendant objected, claiming that enforcement of the subpoena would subject the agents to an undue burden. The court refused to require the non-party insurance agents to engage in the task of combing through their files and other records in search of the documents sought by the plaintiff. The court ordered the defendant to locate and produce relevant s, newsletters, and other correspondence that it sent to its agents. McNally Tunneling v. City of Evanston, 2001 WL (N.D. Ill. Dec. 10, 2001). In a dispute between a construction contractor and the City of Evanston, the court denied Evanston wide-scale access to both hard-copy and electronic versions of McNally s computer files where Evanston s need for both sets of documents was not fully briefed to the court. However, where McNally s hardcopy productions were incomplete, the court ordered McNally to supplement the hard-copy versions with its computer files to ensure that it has produced all of the relevant information. Unnamed Physician v. Board of Trustees of St. Agnes Medical Center, 113 Cal.Rptr.2d 309 (Cal. Ct. App. 2001). In a physician review hearing, the hospital was ordered to provide the physician with all existing documents related to the hospital s computer programs, except those of a proprietary nature. Hayes v. Compass Group USA, Inc., 202 F.R.D. 363 (D. Conn 2001). The plaintiff in an age discrimination action requested information on similar claims filed against the defendant. The defendant advised the court of the burden and expense involved with such a request given that some of the data was stored in a non-searchable computer format. The court ordered the defendant to manually search the unsearchable computer data and to produce all information for which it had computer search capabilities. In re the Matter of the Application of Lees, 727 N.Y.S.2d 254 (N.Y. Sup. Ct. 2001). A rape defendant submitted an ex parte motion asking that the victim and a third party be ordered to turn over their computers for inspection. The defendant sought to uncover an in which the victim falsely claimed to have been raped on a prior occasion. The application of the defendant was granted to the extent that he could show cause to the court. McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001). In a sexual harassment action against plaintiff s employer, the plaintiff sought to force the defendant to search its backup systems for data that was deleted by the user but was stored on backup tape. The defendant rebutted that the remote possibility of yielding relevant evidence could not justify the costs involved. Instead of ordering recovery and production of relevant documents from all of the existing backup tapes, the magistrate ordered the defendant to restore and produce responsive s from one person s computer over a one year period. After this sample data was produced and accessed, the magistrate would then determine if a broader recovery and search was warranted given the burden and expense. Kleiner v. Burns, 2000 WL (D. Kan. Dec. 15, 2000). The court ordered the defendant Yahoo! to disclose all electronic data compilations in its possession, custody, and control that are relevant to disputed facts. The court also ordered parties to preserve evidence that they know, or should know, is relevant to the ongoing litigation, including preservation of all data compilations, computerized data and other electronically-recorded information. Illinois Tool Works, Inc. v. Metro Mark Prod. Ltd., 43 F. Supp.2d 951 (N.D. Ill. 1999). In an unfair competition case, the court ordered the defendant to produce for inspection its computer after the plaintiff showed that the defendant had been less than forthcoming in producing hard 131

132 copies of requested documents. The court further issued sanctions, in the form reasonable attorney s fees and costs, for the failure to comply with the discovery orders. Alexander v. FBI, 186 F.R.D. 78 (D. D.C. 1998). The court concluded that it was appropriate to order an examination of employee's computer hard drive and server to determine whether responsive documents that had not been already produced actually existed. See also Alexander v. FBI, 188 F.R.D. 111 (D.C. Cir. 1998). The court refused to require the defendants to completely restore all deleted files and where the plaintiff did not propose targeted and appropriately worded searched of backed-up and archived and deleted hard drives for a limited number of individuals. Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1997). The plaintiff sought hard copies of over 200,000 s, since its system was unable to read defendant s electronic files. The appellate court affirmed the district court s ruling that a more reasonable accommodation was (1) some combination of downloading the data from the tapes to conventional computer disks or a computer hard-drive, (2) loaning the plaintiff a copy of the necessary software, or (3) offering the plaintiff onsite access to its own system. If all of those options failed, the court ordered that the parties would each bear half the cost of the copying the 200,000 s. Smith v. Texaco, Inc., 951 F. Supp. 109, (E.D. Tex 1997), rev d on other grounds 263 F.3d 394 (5th Cir. 2001). Modifying the original state court TRO in a race discrimination case, the court permitted the moving of certain documents in the ordinary and usual course of business and the deletion of electronic records in the ordinary and usual course of business, provided that hard copy records be made and kept. Strauss v. Microsoft Corp., 1995 WL (S.D.N.Y. June 1, 1995). The court denied Microsoft s motion to exclude evidence of offensive s in a hostile work environment lawsuit. Easley, McCaleb & Assoc., Inc. v. Perry, No. E-2663 (Ga. Super. Ct. July 13, 1994). The court ordered that deleted files on defendant s computer hard drive are discoverable, and plaintiff s expert must be allowed to retrieve all recoverable files. The court issued an order detailing the protocol for reviewing the electronic data. Torrington Co., v. United States, 786 F. Supp (Ct. Int l Trade 1992). The plaintiff requested access to confidential materials contained on a computer tape. The plaintiff also requested hard copies of the data. The court refused to order the defendant to create the computer tapes from scratch where the plaintiff had already received the documents in paper form. In reaching its decision, the court stated, Where the burden, cost and time required to produce the tapes is virtually equal on both parties, then the burden of producing the tapes falls on the party requesting the information. PHE, Inc. v. Department of Justice, 139 F.R.D. 249 (D.D.C. 1991). The court ordered the plaintiff to produce computerized tax records even though the plaintiff possessed no computer program to retrieve or display the records. Although no program may presently exist to obtain the information requested, the court is satisfied that with little effort the plaintiffs can retrieve the necessary and appropriate information It would not be unreasonable to require the plaintiffs to incur modest additional expenditures so as to provide the defendants with the discovery necessary to establish that they are not acting in bad faith and vindictively. In re Air Crash Disaster at Detroit Metro, 130 F.R.D. 634 (E.D. Mich. 1989). In litigation brought after a passenger jet crash, the court ordered the aircraft manufacturer to provide relevant flight simulation data on computer-readable nine-track magnetic tape even though the aircraft manufacturer had already provided the data in hard copy print-outs. Because material did not 132

133 currently exist on magnetic tape, the requesting party (the airline) was required to pay all reasonable and necessary costs associated with manufacture of tape. Timken Co. v. United States, 659 F. Supp 239 (Ct. Int l Trade 1987). The court ordered production of data stored on computer tape even though it had been previously produced in a paper format. Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir. 1982). In an employment discrimination suit, the court refused to order production of the electronic information on computer tape where all the data was previously produced in hard copy. Therefore, the court determined that the Appellants were not deprived of any data. City of Cleveland v. Cleveland Electric Illuminating Co., 538 F. Supp (N.D. Ohio 1980). In an antitrust suit brought by a city against an electric utility, the court ordered the electric utility was entitled to pretrial production by the city of computer data and calculations underlying conclusions contained in reports of certain experts the city intended to call as witnesses. National Union Elec. Corp. v. Matsushita Elec. Ind. Co., 494 F. Supp (E.D. Pa. 1980). The defendant filed a motion to compel production of a computer tape containing the information that the plaintiff previously produced in a hard copy. The court required the plaintiff to have computer experts create a computer-readable tape containing data previously supplied to the defendant in printed form. Pearl Brewing Co. v. Joseph Schiltz Brewing Co., 415 F. Supp (S.D. Tex. 1976). In an antitrust action, the court allowed the defendant to inspect and copy the computer programs and systems documentation at issue and to depose the plaintiff s computer experts as to the creation of the systems. Adams v. Dan River Mills, Inc., 54 F.R.D. 220 (W.D. Va. 1972). In an employment discrimination case, the court required the defendant to provide an electronic version of the printouts already submitted to the plaintiff. Because of the accuracy and inexpensiveness of producing the requested documents in the case at bar, this court sees no reason why the defendant should not be required to produce the computer cards or tapes and the W-2 print-outs to the plaintiffs. Costs Phillips v. WellPoint, Inc., 2013 WL (S.D. Ill. May 16, 2013). In this taxation dispute, the defendants submitted $83, in costs for recovery under U.S.C. 1920(4), alleging that costs from two ediscovery vendors were taxable as fees for exemplification. The court found the Third Circuit s reasoning persuasive and adopted the rationale espoused in Race Tires America, Inc., noting that the Fourth Circuit adopted the same approach in Country Vintner of NC, LLC. Looking to whether the specific services performed fell within the statutory meaning of making copies, the court granted taxation of the following ediscovery expenses: $22, for imaging hard copy files and $4, for ingestion costs (loading hard copy materials). The court denied taxation of the following ediscovery tasks: Logical document determination (similar to processing and indexing before production); project management and technical services; extracting metadata and document text; bates-stamping; creating image load files; creating a concordance-ready data load file; and professional consulting services. Country Vintner of NC, LLC v. E. & J. Gallo Winery, Inc., No (4th Cir. Apr. 29, 2013). In this case brought under the North Carolina Wine Distribution Agreements Act, the defendant submitted a bill of over $100,000 in ediscovery costs for recovery. The charges corresponded to several activities related to managing electronically stored information (ESI): $71,910 for flattening 133

134 and indexing; $15,660 for exporting documents to a review platform and extracting metadata; $ for image conversion; $74.17 for bates stamping; $30 for copying files onto CDs/DVDs; and $23,185 for quality control and production preparation. Under the plain meaning of 28 U.S.C. 1920(4), the court reasoned that costs only for exemplification or producing copies are recoverable under this method of taxation of ediscovery costs. Joining its sister circuit, the court drew from the Third Circuit s Race Tires America Inc. opinion to bar recovery of all costs besides converting files to images and transferring files to CDs which represent the digital analogue of making paper facsimiles. Costs the defendant spent converting ESI into more convenient forms and loading ESI onto a review platform were held non-recoverable. W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, 2013 WL (D.P.R. Apr., 3, 2013). In this discovery dispute, the plaintiffs sought cost taxation of ediscovery costs under 28 U.S.C or cost-shifting under 26(b)(2)(B). The court quickly dismissed the request for cost taxation at this early point in the litigation because the defendants had not prevailed in the dispute a threshold requirement under the statute much less explained why the ediscovery costs at hand (scanning, imaging, batestamping, and privilege review) could be construed as copying costs. Addressing the plaintiffs cost-shifting request, the court looked to the plain language of 26(b)(2)(B) and Zubulake to require the plaintiffs to show some technological feature that inhibits accessibility before engaging in a proportionality assessment under the Federal Rules. Because the plaintiffs briefing on this issue was too speculative, the court did not shift any ediscovery costs at this time. Taylor v. Mitre Corp., 2013 WL (E.D. Va. Feb. 13, 2013). Following a November 2012 order dismissing Family Medical Leave Act and Americans with Disabilities Act claims for the plaintiff s egregious spoliation in deleting ESI and later destroying his laptop with a sledgehammer, the court reviewed reasonable fees and costs submitted by the defendant for which the plaintiff would be responsible. The defendant requested approximately $49,000 in costs, including image processing and forensic analysis of the plaintiff s computer. With regard to the forensic investigation of the plaintiff s computer, the court gave the defendant the benefit of the doubt because the plaintiff s intentional destruction made analysis more difficult, but noted that the Eastern District of Virginia s Taxation of Costs Guidelines limit expert fees and excluded $3,200 in trial preparation fees from the $32,550 sought. Turning to the $5,453 requested for image processing, the court noted that there was scant case law on the issue of image processing, and noted that the Taxation Guidelines limit taxation of costs... to those that are admitted into evidence. The court found that the defendant offered no explanation of what the services entailed noting that blow back TIFF images, was listed twice, without further detail and made no claim that the images were submitted to evidence. As such, the court subtracted the entire amount sought for image processing but would allow the defendant to file an additional motion explaining the image processing fees as properly taxable. Gabriel Tech. Corp. v. Qualcomm Inc., 2013 WL (S.D.Cal. Feb. 1, 2013). In this patent case, the defendants made a request for fees under 35 U.S.C. 285 and of California s Uniform Trade Secrets Act ( CUTSA ) based on the plaintiffs frivolous claims and misconduct during litigation. Assessing whether the plaintiffs claim was exceptional and thus susceptible to a fee award under 35 U.S.C. 285, the court looked to the alleged frivolousness of the plaintiffs claims. The court found that that s sent between employees and former employees suggested that [the p]laintiffs knew they lacked the requisite evidence but pursued their claims nonetheless. Further, the plaintiffs pressed their claims in the face of an $800,000 bond which was mandated after a court found that there was a strong likelihood that attorneys fees would be warranted at the conclusion of the litigation. After finding fees were warranted under both 35 U.S.C. 285 and of CUTSA, the court set the total award at $12,464,331.01, including 134

135 over $9,500,000 of attorneys fees and over $2,500,000 of costs associated with predictive coding. The plaintiffs did not contest the reasonableness of the fees. Moore v. Weinstein Co, LLC, 2012 WL (M.D. Tenn. Dec. 18, 2012). In this litigation relating to various intellectual property claims, the defendants motion for summary judgment was granted, and they submitted a bill of costs containing over $40,000 for ediscovery services. In opposition, the plaintiffs moved to dismiss the defendants costs, arguing that the costs were unreasonable for a litany of reasons, such as the plaintiffs indigent status. The court dismissed the plaintiffs argument based on their finances, and instead focused solely on whether the bill of costs was reasonable on its face. Turning to the ediscovery costs, the court found that the $40,000 requested by the defendants itemized approximately $22,000 for a service provider, with the rest relating to in-house ediscovery services. Reviewing the bill for the service provider, who, in accordance with the case management order (CMO), produced single-page TIFF documents with load files for the parties agreed-upon review platform, the court agreed that the listed rate of $175 per hour reasonable and necessary in light of the CMO. However, the court found the in-house charges at $150 per hour unreasonable, and reduced the taxable costs for in-house ediscovery to $100 per hour, reducing the total amount of taxable ediscovery costs to just over $36,000. Finnerty v. Stiefel Laboratories, Inc., 2012 WL (S.D. Fla. Oct. 16, 2012). In this securities fraud dispute, the plaintiff urged the court to grant taxation of $73, related to creating and maintaining an electronic database that the plaintiff used to manage documents during the case. The court noted lack of clarity among the circuits in applying 28 U.S.C. 1920(4), an outlet for taxation for exemplification and costs of making copies of any materials. While most courts align in holding that creating digital images (e.g. producing TIFF images), is clearly the 21 st century equivalent to making copies, there is much more confusion with regards to more general e-discovery costs, like the plaintiff has here. The court ultimately adopted the Third Circuit s ruling in Race Tires, and held that 1920(4) does not expand beyond digital copying to the creation of new, modified, or enhanced digital files. Because creating and maintaining an electronic database goes beyond simple digital copying, the court denied the plaintiff s taxation costs. Vaughn v. LA Fitness Intern., LLC, 2012 WL (E.D. Pa. Aug. 16, 2012). In this putative contract dispute class action, the Eastern District of Pennsylvania considered shifting e-discovery costs prior to ruling on class certification. The plaintiffs moved to compel internal discussions relating to customer complaints generated in five states over a thirty-month period and s from seven custodians. Despite the defendant s significant discovery in response to initial requests, little relevant information was found. Objecting to further discovery as unduly burdensome, the defendant estimated the cost of production at over $400,000. Before ruling, the court identified several unique aspects of the putative class action before it, namely that the asymmetrical nature of discovery placed a heavy burden on the defendant especially if certification were granted and the class grew from five named plaintiffs to thousands of people, thus dramatically increasing discovery expenses. Additionally, the court noted that discovery was not being conducted solely on the merits of the case, but rather to determine whether certification was appropriate. Based on these unique attributes, the court reasoned that if the plaintiffs, who were represented by a reputable and financially capable firm, had confidence in certification, then they should have no objection to making an investment. Ultimately, the court concluded that where (1) class certification is pending, and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very expensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek. In re Online DVD Rental Antitrust Litig., 2012 WL (N.D. Cal. April 20, 2012). In this antitrust litigation, the plaintiffs motioned for review of the clerk s award of $737, in taxable 135

136 costs. In its analysis, the court took note of the Third Circuit s well-reasoned opinion in Race Tires Am., Inc. v. Hooiser Racing Tire Corp., which limited taxable costs to a very narrow reading of 28 U.S.C. 1920, but identified the absence of directly analogous Ninth Circuit authority. Thus, the court concluded that a broad reading of 1920 for e-discovery costs was most appropriate in this matter. Reviewing the taxation award, the court denied costs taxed for production of black and white copies of PowerPoint slides, restamping of documents, and transcripts totaling approximately $27,000. With regard to the rest of the e-discovery costs, the court declined to deny them, modifying the taxation award to $710,194.23, for which payment was stayed pending further appeal of the court s decision. Cordance Corp. v. Amazon.com, Inc., 2012 WL (D. Del. April 11, 2012). The defendant, who prevailed in this patent infringement suit, submitted a bill of costs that included $447, for e-discovery costs. The plaintiff objected, alleging it was indigent, that the defendant engaged in stalling tactics to increase costs and, alternatively, that costs should be significantly reduced because the bill was unsubstantiated. With regard to the plaintiff s primary objections, the court found that the plaintiff failed to provide sufficient evidence of its financial health or of the defendant s repeated attempts to delay discovery. Analyzing the plaintiff s alternative objection, the court cited the Third Circuit s decision in Race Tires Am., Inc. v. Hooiser Racing Tire Corp specifically the finding that 28 U.S.C. 1920(4) does not authorize taxation merely because today s technology requires technical experience not ordinarily possessed by the typical legal professional as controlling precedent. Under this framework, the court limited recoverable costs to scanning or conversion of documents. Reviewing the defendant s invoices, the court found that expenses for intelligent culling, tech time, and processing services were not recoverable and reduced the defendant s request for $447, in e-discovery costs to $2, Finally, the court noted that the bulk of the defendant s invoices were deficiently itemized, and allowed it to submit more detailed invoices within 30 days to attempt to recover more of its e-discovery costs. Lubber v. Optari, 2012 WL (M.D. Tenn. Mar. 15, 2012). In this latest volley of discovery disputes, Magistrate Judge Joe Brown addressed the defendants motion for a protective order, or in the alternative, cost shifting under Fed.R.Civ.P. 26(b)(2)(C)(iii). The defendants argued that a purportedly effective settlement agreement limited discovery to a small window that began to run when the plaintiff filed for bankruptcy, and that requiring production before this time period would be too expensive. Simultaneously seeking a motion to compel on nine different topics (including information before the defendant s bankruptcy filing date), the plaintiff attacked the agreement and argued that production before the time period was warranted, as it was relevant to their claims after the filing date. Reviewing the arguments, Judge Brown believed that both parties were leveraging the American producer pays rule to bludgeon their opposition with substantial discovery costs. Declaring that the documents sought were likely only of marginal relevance, the court denied the protective order but mandated the parties to share equally in any further discovery costs. U.S. Bank Nat. Ass n v. GreenPoint Mortgage Funding, Inc., 939 N.Y.S.2d 395 (N.Y. App. Div. Feb. 28, 2012). In this cost shifting dispute, one plaintiff appealed the lower court s order requiring the requesting party to bear the cost of production, arguing the court should instead adopt the wellknown federal Zubalake standard. The defendant countered that requiring requesting parties to pay encourage[s] parties to self-regulate the scope of their discovery demands, deterring them from leveling opposing parties with massive production costs. Resolving inconsistency among lower courts, the court sided with the plaintiff and endorsed Zubalake (requiring the producing party to pay for searching, retrieval and production, but permitting shifting of costs between parties based on seven factors) as the most practical framework for cost allocation. The Appellate Division went on to attack the requestor pays rule, noting that such a rule could deter parties from filing 136

137 meritorious claims altogether if e-discovery costs would be prohibitive, especially if the plaintiff is an individual. This opinion surfaced within weeks of the Appellate Division s endorsement of the Zubalake preservation standard in Voom Holdings LLC v. EchoStar Satellite L.L.C. Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2012 WL (3d Cir. Mar. 16, 2012). In this taxation dispute, the plaintiffs sought review of the district court s opinion granting taxation of costs for a variety of e-discovery vendor services. The Third Circuit scrutinized a line of authority granting broad taxation of vendor costs where the services were highly technical or beyond the expertise of an attorney. The court bore down on the plain meaning of 28 U.S.C. 1920(4) and ruled that the crux of a particular taxation issue simply turns on whether the cost falls within the statute s coverage of costs incurred for exemplification or making copies nothing more. After rattling through the defendant s list of e-discovery expenses, the court held that only scanning documents and file format and VHS to DVD conversions fell within the scope of taxable costs. In turn, the court vacated district court s original award of costs and chopped the defendant s purse down by $95, (to around 25% of the district court s award). Last Atlantis Capital, LLC v. AGS Specialist Partners, 2011 WL (N.D. Ill. Dec. 5, 2011). In this securities fraud litigation, the plaintiffs requested that the defendants share the costs of obtaining data from a third party. To support their contention that cost-sharing was appropriate, the plaintiffs cited Sedona Conference commentary and several court opinions advocating that parties address cost-sharing. In opposition, the defendants asserted that neither reason nor precedent required them to share the cost of plaintiffs discovery requests. Denying the plaintiffs request, the court held that both the Sedona Conference and case law failed to support the notion that a non-requesting, opposing party should be required to aid the requesting party in funding its efforts to obtain third-party ESI. In particular, the court stated that the plaintiffs reliance upon Sedona Conference commentary is especially curious, as it is almost entirely irrelevant to the instant matter. Further, the court pointed to the idea that the Sedona Conference s only reference to cost-sharing between two parties is merely a best practices suggestion that the parties meet and confer to address cost-sharing in their initial Rule 26(f) conference. The court concluded that the plaintiffs reference did not mandate that the defendants share the costs for evidence that the plaintiffs needed to prove their case. In re Ricoh Co. Ltd. Patent Litig., 661 F.3d 1361 (Fed. Cir. 2011). Following a court of appeals affirmation of a district court's order granting the defendant summary judgment in a patent infringement suit, the plaintiff sought review of several items in a $938,957 taxation award. Namely, the plaintiff disputed costs awarded for using a third-party document database service to produce and fees for generically itemized exemplification and copying. With regard to the document database, the court found that the review database was used as the exclusive form of document production rather than for the convenience of the parties and was properly taxable. However, the court reversed the original award of $234,702 based on a finding that the parties contractually agreed to divide costs before leveraging the service. Reviewing the defendant's costs, the court found that vague phrases such as "document production" that were frequently itemized did not represent a reasonably accurate calculation of documents copied for, or tendered by, the opposing party. Accordingly, the court vacated the $322,702 award for copying fees, which was remanded to district court. Jardin v. DATAllegro, Inc., 2011 WL (S.D.Cal. Oct. 12, 2011). In this patent infringement litigation, the plaintiff objected to a taxation of costs award for the defendants, who prevailed on summary judgment. Specifically, the plaintiff requested that the court "stay, deny, or re-tax" portions of the award for the costs of converting data to TIFF format and a for a project manager who oversaw the conversion process. The plaintiff also motioned to deny costs entirely 137

138 based on economic disparity between the plaintiff and Microsoft, the defendant's parent company. First addressing the plaintiff s economic disparity argument, the court denied on grounds that Microsoft was not a party and further noted that an economic disparity argument required limited financial resources, which the plaintiff s earlier assertions contradicted. Turning to the TIFF conversion discussion, the court noted the variety of file formats in which the plaintiffs produced ESI, and considered the TIFF conversion done "in lieu of making traditional paper copies," thus within the scope of Federal Rule of Civil Procedure 54 s language. Finally, the court considered the work done by the project manager substantially different than the work done by an attorney or paralegal because it was confined solely to physical production and required no "intellectual efforts." Thus, the court denied motions to deny or re-tax the award. In re Aspartame Antitrust Litig., 2011 WL (E.D. Pa. Oct. 5, 2011). In this class action, the plaintiffs objected to the defendants bill of costs, which included costs associated with creating a litigation database, processing and hosting electronic data, conducting keyword and privilege screens, making documents OCR searchable, extracting metadata, creating CDs and DVDs of electronic documents, copying, scanning and other related work. In discussing the taxation of these costs, the court noted that in cases of this complexity, e-discovery [processes and technology] saves costs overall by allowing discovery to be conducted in an efficient and cost-effective manner. Although the court taxed costs for the work described, it drew the line at advanced e- discovery technology that exceeded necessary keyword search and filtering functions and related Tech Usage fees, in addition to costs associated with Bates and confidentiality labeling, and converting TIFF documents to PDFs. In sum, the court awarded total costs of $510, which were split amongst the three defendants pursuant to the court s analysis. CBT Flint Partners, LLC v. Return Path, Inc., 2011 WL (C.A.Fed. (Ga.) Aug. 10, 2011). Previously in this patent infringement litigation, the Northern District of Georgia court granted summary judgment of invalidity regarding the patent dispute. In addition, the district court determined $268, in costs related to e-discovery were properly taxable. See CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL (N.D. Ga. Dec. 30, 2009). On appeal, the Court of Appeals overturned the root issue in the underlying patent litigation, vacated the ruling regarding costs as the defendant was no longer the prevailing party and remanded to the district court for further proceedings. Promote Innovation LLC v. Roche Diagnostics Corp., 2011 WL (S.D. Ind. Aug. 9, 2011). In this qui tam action, the plaintiff objected to the defendant s request for taxation of e- discovery costs pursuant to 28 U.S.C. 1920, arguing the costs were not allowable and, alternatively, that they should be exempted as a qui tam relator. Dismissing the plaintiff s first contention that the defendant did not inform them of search terms used, the court held the plaintiff did not provide evidence demonstrating the search terms were improper or unnecessary. Next, the court rejected the plaintiff's allegation that the defendant s ESI management techniques including data restriction, custodian filtration, de-duplication and repairing corrupted documents and database errors, were implemented for the defendant's own convenience and therefore fell outside the scope of taxable costs. Instead, the court determined that if the defendant had not used these efficient processes, the costs may have been significantly greater. Noting that precedent supported the taxation of e-discovery costs under 1920 and provided no exception for qui tam relators, the court granted the Bill of Costs in the amount of $10, Couch v. Wan, 2011 WL (E.D. Cal. July 20, 2011). In this RICO action, the plaintiffs sought reconsideration of a magistrate judge's order requiring the parties to share costs of the plaintiffs' requests for ESI. The plaintiffs argued the cost-shifting order was contrary to law because the requested data was stored on reasonably accessible hard drives or optical drives. Alternatively, 138

139 the plaintiffs argued that cost-shifting was premature because they should not have to "bear the burden" of sharing costs for the initial 140 gigabytes of data identified by the defendants, which likely contains irrelevant and unrequested information. Finding for the defendants, the court noted that the plaintiffs' unsupported assertions that the $54,000 estimated cost to produce the requested ESI was exaggerated and that hard drives are accessible did not support a finding that the ruling was clearly contrary to law. In denying the motion, the court also admonished the plaintiffs for seeking reconsideration without the benefit of first attending the court ordered meet and confer session, noting this failure was currently the only issue of prematurity. SPM Resorts v. Diamond Resorts Mgmt., Inc., 2011 WL (Fla. App. 5 Dist. July 8, 2011). In this business litigation, the plaintiff (who is the defendant in the underlying case) sought certiorari review of a circuit court decision ordering it to pay $20,000 and potentially more in the future to conduct computer searches to comply with the defendant's (the plaintiff in the underlying case) discovery request. The plaintiff argued the court order was unreasonable and unduly burdensome, and marked a departure from the "essential requirements of the law." Agreeing with the plaintiff's arguments, the court believed ordering the plaintiff to split the costs associated with engaging a computer expert to inspect its computer systems was unreasonable. Further, the court noted that "placing a substantial financial burden on a party relating to the production of its adversary s document request does nothing more than require a party to fund its adversary s litigation" which is not permitted by the Rules of Civil Procedure. Accordingly, the court granted the plaintiff s request and quashed the trial court's order. IWOI, LLC v. Monaco Coach Corp., 2011 WL (N.D. Ill. May 24, 2011). In this breach of warranty and consumer fraud litigation, the plaintiff sought sanctions for the defendants failure to produce a highly relevant that was discovered during a court-authorized search at the plaintiff s expense. The plaintiff alleged this was deliberately withheld under an improper extension of privilege, and accordingly sought to shift the entire cost of the search $15,069 onto the defendants. The defendants argued that their employees were unable to discover the despite a diligent search, the was not reasonably accessible and the request did not encompass the in question as required by Principle 2.01 of the Seventh Circuit Electronic Discovery Pilot Program. Citing forensic expert testimony that a simple word search... would have uncovered the , the court noted that it is the responding party s obligation to ensure relevant documents are produced and determined the plaintiff s discovery requests fairly encompassed the . Although the plaintiff suffered no prejudice, the court held there was no excuse for the obvious discovery violation and ordered the defendants to pay half the costs of the search. The court also admonished both parties, remarking that their unwillingness to cooperate or compromise was more responsible for the dispute than any one action taken by either party. Clean Harbors Envtl. Servs., Inc. v. ESIS, Inc., 2011 WL (N.D. Ill. May 17, 2011). In this professional negligence and breach of contract litigation, the plaintiff sought to shift the expense of retaining a third party vendor to filter, cull and process 166 gigabytes of data that cost nearly $91,000. The defendants argued that the information was not inaccessible and that the plaintiff could have first sought to narrow the requests. Finding the information was not reasonably accessible as it was kept on backup tapes, the court considered numerous cost-shifting factors and determined that these factors mattered less than the plaintiff s reliance on the defendants repeated indications that they would consider sharing costs. Commending the plaintiff for its efforts to negotiate discovery prior to seeking court intervention, the court mandated that the parties split the costs of e-discovery, but required both defendants to pay only a quarter of the cost each because there was no meeting of the minds on the actual agreement. 139

140 Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 2011 WL (W.D. Pa. May 6, 2011). In this antitrust litigation, the plaintiffs moved to appoint a special master and to review the taxation of electronic discovery costs awarded to the defendants. Refusing to appoint a special master to review the reasonableness of the e-discovery costs this late in litigation, the court remarked that its "understanding that e-discovery has become a necessary and sometimes costly function of civil litigation" was the only special expertise necessary. Turning to the clerk of court s taxation of electronic discovery costs totaling $143, and $246, for the respective defendants the court considered the plaintiffs objection that the costs were not taxable pursuant to Title 28 U.S.C As a matter of first impression for the court, it reviewed the varying case law among the jurisdictions but noted that since the section's language was amended in 2008, "no court has categorically excluded e-discovery costs" under Finding that the costs paid to third party vendors were necessary for highly technical services and not merely for the convenience of the parties, the court held they were properly taxable to the plaintiffs. Larkin v. Trinity Lighting, Inc., 2011 WL (S.D. Miss. Apr. 20, 2011). In this employment litigation, the defendant requested payment from the plaintiff (a former employee) for an estimated $8,000 to $10,000 in deleted data restoration costs. Alleging the deleted data contained information relevant to its counterclaims, the defendant argued the plaintiff had actual knowledge that he was not to delete files from company-issued computer equipment before returning it following termination of his employment. However, the plaintiff contended the files were not deleted in anticipation of the lawsuit because he had no knowledge the negotiations would fail and had consulted counsel solely to negotiate severance pay. In addition, the plaintiff argued he had no other way of removing his personal information from the computers in order to return the property to the defendant and that the documents were already in the defendant's possession. Finding it was "far from clear" whether the plaintiff deleted the files in bad faith, the defendant suffered prejudice and the information to be retrieved would provide any substantial benefit, the court denied the motion and concluded the defendant could recover the apparently retrievable information at its own cost if it chose to do so. Autry Petroleum Co. v. BP Prods. N. Am., Inc., 2010 WL (M.D. Ga. Aug. 16, 2010). In this contract dispute, the plaintiffs moved to review taxation of costs by the clerk following affirmation of summary judgment on appeal. The plaintiffs contended that both parties agreed to bear their own expenses for e-discovery, objecting to taxation of certain costs as unauthorized and unnecessary. Finding the parties never entered into a cost allocation agreement as alleged, the court addressed the plaintiffs' objections and found expenses relating to preparation of the defendant's privilege log, costs for hard copy prints of electronic images, e-discovery costs postdating the defendant's final production and costs incurred in transferring data to a different electronic format for document review to be necessary and properly taxable. Based on these and non-electronic discovery findings, the court adjusted the final recovery to the amount of $147, Universal Del., Inc. v. Comdata Corp., 2010 WL (E.D.Pa. Mar 31, 2010). In this discovery dispute, the plaintiffs sought third-party compliance to the subpoena requesting production of responsive ESI, without requiring the plaintiffs to provide compensation for applicable attorneys fees. According to the plaintiffs, the third party had an interest in the outcome of the litigation and therefore was not entitled to reimbursements for production and review costs of discovery material. The court determined that as a result of the potentially large costs of production, the third party had met its burden of proof in showing that the ESI was not reasonably accessible and that the information was in marginally accessible media form (backup tapes). Based on the recommendations of an electronic evidence consultant, the court ordered the 140

141 requested information be imaged and produced for the plaintiffs in a separate searchable database. Citing the seven-factor cost-shifting test set forth in Zubulake I, the court ordered the database creation costs be evenly distributed between the plaintiffs and the third party based on the inaccessible format of the information. CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL (N.D. Ga. Dec. 30, 2009). In this patent infringement action, the defendants filed a motion to tax the costs associated with using an e-discovery vendor to aid in the production of 1.4 million electronic documents and six versions of source code. Objecting, the plaintiff argued that fees associated with the collection of documents for production are not taxable under 28 U.S.C Although noting that a judicial division of opinion exists as to whether U.S.C 1920 allows recovery, the court cited the highly technical nature and necessity of e-discovery services in the electronic age to overrule the plaintiff's objection and hold the $268, in costs to be recoverable. In supporting its finding, the court reasoned that the "[t]axation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery." Dahl v. Bain Capital Partners, LLC, 2009 WL (D. Mass. June 22, 2009). In this antitrust litigation, the plaintiffs moved for entry of an order governing discovery regarding costs, metadata and production format. After making clear that electronic discovery must proceed in an organized and managed fashion, the court first ordered the defendants to pay their own costs in producing electronic documents to the plaintiffs, as they did not demonstrate the data s inaccessibility. Second, the court held the defendants did not have to incur costs to change the production format of already produced documents, because the plaintiffs did not show that translating the documents to another production format was necessary to make the documents reasonably usable under Fed.R.Civ.P. 34. Third, the court refused to compel the defendant to produce all metadata, citing wariness that metadata may not lead to admissible evidence and that requests for metadata should be tailored to specific documents. Finally, the court ordered the defendants to produce their spreadsheets and privilege logs in native format pursuant to Fed.R.Civ.P. 34 s requirement that documents be produced as they are kept in the usual course of business. Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL (S.D.Fla. Apr. 24, 2009). In this RICO action, the plaintiff sought a production response from the defendants after a previous motion to compel proved fruitless. The plaintiff also requested sanctions in the form of direct access to the defendants' computer hardware and electronic information. Finding the defendants failed to present a sufficient reason for the discovery inadequacies, the court determined an independent computer expert should be appointed to retrieve deleted responsive files from the defendants' computers. The court ordered the plaintiff to submit search terms and bear the expert's costs unless future evidence of discovery misconduct necessitated cost allocation to the defendants, but awarded attorneys' fees to the plaintiff. The court also afforded the defendants the right to review the search terms and determine privilege and responsiveness. T.A. Ahern Contractors Corp. v. Dormitory Auth., 2009 WL (N.Y.Sup. Mar. 19, 2009). In this state contract dispute, the plaintiff moved to compel electronic discovery pursuant to CPLR The plaintiff sought archived s and other electronic documents, which the defendant claimed amounted to 35 gigabytes of electronic data. Based on this amount of data, the defendant argued it was necessary to hire an e-discovery vendor at cost to the plaintiff. The court found hiring a vendor to be a necessary component of the production process. Addressing the plaintiff's argument that the Zubulake I cost-shifting factors should be considered, the court noted the distinction between the CPLR and the Federal Rules of Civil Procedure and that the plaintiffs did not allege that the defendants had maintained its electronic data in any way that added to the expense of production. The court held it was not empowered to overturn the New York rule that 141

142 requires the cost of production to fall upon the party seeking discovery, which creates a strong incentive for formulating requests to be as minimally burdensome as possible. Therefore, the court denied the plaintiff's motion to compel unless the plaintiff was willing to bear the costs. State ex. rel. Toledo Blade Co. v. Seneca County Bd. of Comm rs, 2008 WL (Ohio Dec. 9, 2008). In this litigation, the plaintiff filed an action seeking a writ of mandamus to compel the defendant to recover the content of requested s that had been deleted. The plaintiff argued that a public office has an obligation to maintain certain records, such as the records at issue here, and make them available for inspection and copying under the Public Records Act. Finding substantial gaps in the responsive s provided by the defendant, the court determined that a reasonable inference was raised that at one time, additional responsive s were deleted in violation of the defendant s document retention schedule. Additionally, through an affidavit of a computer expert specializing in forensic data-recovery services, the plaintiff established that there was some likelihood that the recovery of the deleted s would be successful. Therefore, the court also concluded the defendant should be required to attempt to restore deleted s. The court ordered the defendant to bear the expense of the forensic analysis but stated that the recovery efforts need only be reasonable, not Herculean. Tierno v. Rite Aid Corp., 2008 WL (N.D.Cal. Aug. 19, 2008). In this class action litigation, the defendant objected to a previous order requiring it to pay copying costs associated with producing responsive paper documents. See Tierno v. Rite Aid Corp., 2008 WL (N.D.Cal. July 31, 2008). The plaintiff argued the defendant s failure to seek a protective order to shift costs waived the right of objection. Granting the defendant s objection, the court held that a responding party is not obligated to seek a protective order if it complies fully with Fed.R.Civ.P. 34, which requires the producing party to make the documents available for inspection, but does not require them to pay copying costs. Notably, the court found it in error that the magistrate judge applied the Zubulake cost shifting factors, holding such factors inapplicable to the instant case involving only paper documents. Growing frustrated with the numerous discovery disputes, the court appointed a special master to avoid wasting judicial resources and ordered the parties to split the costs, unless the special master determined otherwise. Tierno v. Rite Aid Corp., 2008 WL (N.D.Cal. July 31, 2008). In this class action employment litigation, the defendant objected to the magistrate judge s order that required them to pay the costs of copying responsive paper documents. The court stated, the seven-factor Zubulake test which [the magistrate judge] applied is intended solely for electronic discovery, not for discovery of paper documents. According to the court, the rule for paper documents is that [a] party producing documents will ordinarily not be put to the expense of making copies for the requesting party. Relying on these rules, the court held that the magistrate judge clearly erred by analyzing the cost-shifting dispute under Zubulake, but granted the plaintiffs an opportunity to brief the cost-shifting issue on other grounds. See also Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 322 (S.D.N.Y. 2003). Cason-Merenda v. Detroit Medical Center, 2008 WL (E.D.Mich. July 7, 2008). In this antitrust litigation, the defendant requested an order under Fed.R.Civ.P. 26(c) requiring the plaintiffs to share its third party vendor e-discovery costs for discovery already completed. The defendant supported their motion with several arguments, including: that the Federal Rules of Civil Procedure do not envision a ruling on cost shifting early in the case; that a previously stipulated order reserved the unrestricted right for the parties to later seek a cost-shifting order; and that costshifting is not restricted to inaccessible data. Disagreeing with the defendant s arguments, the court denied the order. The court stated the Federal Rules plainly contemplate that a motion for protective relief (including cost shifting) is to be brought before the court in advance of the undue 142

143 burden, cost or expense from which protection is sought. The court reasoned any other interpretation would offend common sense since the rule must be interpreted as a means of avoiding undue burden or cost, rather than simply distributing it. Peskoff v. Faber, 2008 WL (D.D.C. July 7, 2008). In this ongoing contract dispute, the court followed up on its previous holding that it was appropriate to ascertain the cost of a forensic examination to determine if the cost was justified. After the previous ruling, both parties submitted a joint bid resulting in a vendor proposal of $33,000. Determining the forensic examination to be justified, the court considered whether the burden or expense justified a shift of cost to the requesting party. Finding the defendant s inadequate search efforts, failure to preserve electronically stored information and overall unwillingness to take discovery obligations seriously caused the need for a forensic examination, the court refused to shift costs since the problem was one of the defendant s own making. Mikron Indus., Inc. v. Hurd Windows & Doors, Inc., 2008 WL (W.D. Wash. April 21, 2008). In this dispute, the defendants sought a protective order regarding electronically stored information (ESI), claiming searching through their ESI would create significant costs and would yield cumulative results. The defendants also relied on Fed.R.Civ.P. 26(b)(2) to make a costshifting argument. The plaintiff argued the defendants had not reasonably complied with discovery requests. Denying the protective order, the court determined the defendants did not sufficiently demonstrate the inaccessibility of the requested ESI, or an undue hardship; therefore, cost-shifting was not appropriate. Specifically, in alleging continued discovery of ESI would be unduly burdensome, the defendants failed to offer evidence beyond a cost estimate, such as the number of backup tapes, different methods used to store electronic information, or document retention policies. The court ordered the parties to meet and confer to discuss ESI discovery, prior to bringing any future motions. Barker v. Gerould, 2008 WL (W.D.N.Y. Mar. 27, 2008). In this employment litigation, the plaintiff initially filed a motion to compel production of among and between the parties. In response, the defendants produced some ; however, the plaintiff claimed the production was inadequate and renewed its motion to compel. In an effort to ascertain the adequacy of the defendants search, the court ordered the parties to submit an affidavit describing the procedures undertaken, but the submitted affidavit merely described the additional work required to restore the deleted data from backup tapes. Finding the record pertaining to the defendants search of the requested from accessible sources incomplete, the court declined to compel production and instead ordered the defendants to identify individuals with knowledge of the steps taken during collection and allowed time for the plaintiff to depose those individuals. Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Limited, 2008 WL (D.D.C. March 4, 2008). In this trademark registration dispute, the defendant sought attorney s fees and costs associated with the plaintiff s failure to comply with an earlier discovery order. The defendant sought monetary reimbursement for the filing of the second motion to compel as well as the pending motion for fees and costs. The plaintiff argued the time spent on unrelated issues and those the defendant did not ultimately prevail on should not be awarded. Additionally, the plaintiff claimed that the defendant s time estimation was grossly unreasonable and excessive. Agreeing with the plaintiff, the court denied reimbursement for ordinary litigation activities, including time spent on document review and related activities and internal discussions concerning the plaintiff s discovery failures. Henry v. Quicken Loans, Inc., 2008 WL (E.D.Mich. Feb. 15, 2008). In this class action suit claiming the defendants withheld overtime pay, the plaintiffs filed a motion for relief from a computer forensic expert s invoice, claiming that while they originally agreed to pay the expert s 143

144 fees, the defendants unilaterally modified the agreed upon screening process. The parties previously agreed upon the search terms and exclusionary terms to be utilized in the search process and the expert was given direction to work under the direction and control of the defense counsel for instruction, not the plaintiffs counsel. Upon discovering the defendants made numerous unauthorized revisions to the filtering process resulting in additional computer forensic expert costs, the plaintiffs sought relief. Determining the additional costs to be unauthorized, the court ordered the defendants to pay all costs other than those associated with the original agreement. PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL (N.D.N.Y. Sept. 7, 2007). In this breach of contract case, the defendant sought production of all electronically stored s along with their corresponding attachments. The plaintiff produced a disc with e- mails that, due to a technical glitch, were divorced from their proper attachments. Many efforts to join the attachments failed and the defendant moved to order a second production at the plaintiff s expense. The plaintiff claimed such would be overly burdensome and costly but agreed to reproduce at the defendant s expense. Relying on Fed.R.Civ.P. 34(b), the court found that the original production was not within the normal course of business or in a form readily usable and therefore ordered the plaintiff to reproduce. The court also ordered the plaintiff to pay for the costs of reproduction as the producing party presumptively bears the expense of production. Haka v. Lincoln County, 2007 U.S. Dist. LEXIS (W.D.Wis. Aug. 29, 2007). In this wrongful termination suit, the defendants motioned the court for a protective order to limit their discovery obligations. The plaintiff sought all documents, notes, memos, s and metadata from all officials, board members and officers regarding the reorganization of the Lincoln County Child Support Agency. Documents responsive to this request, which existed on two external hard drives containing about four terabytes of data extracted from computer servers, accounted for approximately 500 billion typewritten pages. The parties attempts to limit the production based on keyword searching were unsuccessful as they could not agree on which words to use. The court considered the Zubulake factors as well as the Advisory Committee Notes to Rule 26(b)(2) and found that although the issues were important, the potential damages were low and the cost of production was disproportionate. The court granted the defendants motion in part by ordering the plaintiff to determine the keywords to be used and the parties to split the cost of the search 50/50. The defendants were required to pay for the cost of the privilege and relevance review. Pipefitters Local No. 636 Pension Fund v. Mercer Human Resource Consulting, Inc., 2007 WL (E.D.Mich. July 19, 2007). On the plaintiffs objection to the Magistrate s previously issued scheduling order in which the defendants were required to produce requested discovery to the plaintiffs and the plaintiffs were to bear the cost of restoring or locating electronic data, the district court considered amending the scheduling order. The district court stated that Rule 26(b)(2)(B) of the Federal Rules of Civil Procedure requires the producing party to show inaccessibility before the requesting party can then establish good cause and the court may consider shifting costs. Because the Magistrate issued the cost shifting provision without any motions from the parties, it was not apparent that the Magistrate engaged in the proper analysis before shifting the cost of discovery to the plaintiffs. The court therefore granted the plaintiffs motion to strike the cost shifting order. Guy Chem. Co. v. Romaco AG, 2007 WL (N.D.Ind. May 22, 2007). In a suit alleging breach of contract, the defendant motioned the court for a third party subpoena, seeking information establishing the extent of the plaintiff s damages. Upon receipt of the subpoena, the third party estimated the cost of production at approximately $7,000 since all documents were stored electronically. The third party did not object to producing the material, but requested that the 144

145 defendant pay the production costs. The defendant argued the third party was unreasonable by requiring payment before they would produce. The court held that while the defendant established good cause for the materials, they had to pay the costs of production. The court reasoned, [N]ot only is it fundamentally unfair for non-parties to bear the significant litigations costs of others, but also if this Court were to allow litigating parties like [the defendant] to impose such a burden on non-parties, then the likelihood of cooperation by non-parties in the future would be placed in jeopardy. The court determined a third party may have to bear its own costs of production when they are de minimis, but the burden of proof is placed on the requesting party to show that the costs are de minimis. IO Group, Inc. v. Veoh Networks, Inc., 2007 WL (N.D. Cal. Apr. 13, 2007). In this copyright infringement suit, the plaintiff sought to compel the defendant to produce all copies of any video published on the defendant s website in electronic form. The defendant company operated a website that enabled the sharing of user-provided video content over the internet. The plaintiff claimed that some of its videos were shared over the defendant s website without the plaintiff s authorization. The defendant argued that the request to produce all videos on its website was overbroad and likely to lead to the discovery of irrelevant third-party videos. The plaintiff argued that its videos can only be identified by examining all videos contained on the website. The court held that since information related to the plaintiff s works was indisputably relevant and since there was no other way for plaintiff s works to be identified except through a review of all material published on the defendant s website, the defendant was required to produce all electronic video that was once published on its website. The defendant argued that the costs of production should be shifted to the plaintiff, but the court undertook a Zubulake cost-shifting analysis and determined that the defendant did not provide any information on how such information was inaccessible, much less any information necessary for the court to decide whether it would be appropriate to shift all costs of production to plaintiff. However, the court did encourage the parties to come to an agreement as to the most efficient means of production, and the plaintiff noted that it was willing to provide high capacity storage devices for the production in order to reduce costs. In re Veeco Instruments, Inc. Sec. Litig., 2007 WL (S.D.N.Y. Apr. 2, 2007). In this securities litigation, the plaintiff sought to compel the defendant to produce several named individuals documents from back-up tapes covering an eight-month period. The defendant objected, arguing that the plaintiff s motion was unduly delayed and that restoring and searching the back-up tapes would be extraordinarily burdensome and costly. The defendant further argued that if production of the back-up tapes was ordered, the plaintiff should bear the costs. The court noted that while the defendant had neglected to identify the back-up tapes as an inaccessible source of potentially responsive information, as required by Fed. R. Civ. Pro. 26(b)(2), both parties had overlooked their obligation to discuss discovery parameters and protocols. Finding that the plaintiff could not reasonably assume that the defendant would have undertaken discovery of the back-up tapes as a matter of course, the court determined that the back-up tapes were not reasonably accessible. The court then considered whether good cause justified discovery of the back-up tapes despite the associated burdens and costs. The court cited the resources of the parties, the discoverability of the information, the specificity of the request and the unavailability of the information from other more accessible sources as reasons demonstrating good cause. Accordingly, the court directed the defendant to restore the back-up tapes for the specified time period and to produce responsive, non-privileged information to the plaintiff. Turning to the issue cost allocation, the court directed the defendant to initially to pay for the cost of production and postponed further cost-shifting analysis until it had a chance to review the results of the search and consider the actual time and effort expended by the defendant. 145

146 AAB Joint Venture v. United States, 2007 WL (Fed. Cl. Feb. 28, 2007). In this construction litigation case, the plaintiff moved to compel discovery of s from the defendant. The defendant listed several individuals who were known to have generated related to the subject matter of the litigation. However, the defendant produced from only a few of the individuals, and the production from those individuals revealed insufficiency and gaps in the production. The defendant argued that it produced thousands of s already and that further production required restoration of back-up tapes that would cost between $85,000 and $150,000. The defendant further argued that many of the s were protected as privileged communications. The plaintiff argued the defendant had a duty to preserve and costs should not have any bearing on whether the documents should be produced. The court agreed with the plaintiff and ruled that the defendant s production of s was far from adequate. The court further ruled that cost is only one factor in ordering a motion to compel and that the court cannot relieve Defendant of its duty to produce those documents merely because Defendant has chosen a means to preserve the evidence which makes ultimate production of relevant documents expensive. As such, the defendant was ordered to restore a portion of its back-up tapes from time periods specified by the plaintiff and was ordered to bear the costs of the initial sampling. Any further production and cost allocation would be determined by the sample production. Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL (D. Minn. Feb. 1, 2007). In a discovery dispute, the defendants appealed to the district court judge the magistrate judge s order which required them to produce certain electronic evidence on back-up tapes. The defendants argued that the production of back-up tapes would be time and cost prohibitive and thus would be unable to meet the discovery deadline. The defendants argued that technological constraints beyond their control rendered compliance with the deadline impossible. The magistrate judge determined that defendants had not met their burden to establish that the information sought was not reasonably accessible because of undue burden or cost. The magistrate found that the defendants offered no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives and that those concerns cannot shield the defendants from discovery. The district court judge upheld the magistrate s denial of the deadline extension because the magistrate s ruling was neither clearly erroneous nor contrary to law. The district court judge held that discovery deadline modification might be warranted if compliance with the deadline is in fact technologically impossible. However, the district court judge chose to follow the decisions of the magistrate judge because the magistrate judge s prior decisions regarding electronic discovery disputes were thorough and well-reasoned. Semsroth v. City of Wichita, 2006 WL (D. Kan. Nov. 15, 2006). In a gender discrimination case, the defendant brought a cost-sharing motion for discovery costs associated with producing from 117 employees, as requested by the plaintiff. The was only stored on disaster relief backup tapes. The defendant had already spent $20,000 in producing electronic documents from their backup tapes and would have to purchase additional software to produce the remaining . The plaintiff argued that the defendant should incur all of the costs because they chose to store the in an inaccessible format. The court held that the defendant should incur all of the discovery costs. It noted that the costs already incurred are irrelevant to a cost-shifting analysis because the majority of those expenses do not directly relate to the restoration and search of the backup tape. Furthermore, the court noted its power under the amendments to the Federal Rules of Civil Procedure to rule on discovery that was overly broad. The court ordered the plaintiff to reduce the number of accounts to 50 employees instead of 117, and it also removed several generic search terms from defendant s list of search terms and reduced the total number to 10 specific terms. 146

147 Bank of Amer. Corp. v. SR Int l Bus. Ins. Co., 2006 WL (N.C. Super. Nov. 1, 2006). The defendants sought deleted s from 400 backup tapes of Marsh, Inc., a broker of the plaintiff and non-party to the litigation. Marsh previously produced over 50,000 documents for the litigation but the defendants argued all relevant s may not have been produced. Marsh argued, as a non-party, the defendant s request would impose an undue burden and expense. Marsh s expert from Kroll Ontrack stated such recovery and organization could cost as much as $1.4 million. The defendants argued Marsh may have only produced s responsive to the subpoena and none that related to the claims and defenses of the case. The court denied the defendants motion because such a low level of marginal utility does not justify imposing a heavy burden on a nonparty nonparties should not be penalized for having a backup system by making them produce inaccessible backup data without good cause. Additionally, the court found no evidence that Marsh had failed to produce responsive documents or that the requested s would show anything contrary to the s already produced. NOTE: The court listed this as the companion case to Analog Devices Inc. v. Michalski, 2006 WL (N.C. Super. Nov. 1, 2006), which was filed concurrently by the court. Analog Devices Inc. v. Michalski, 2006 WL (N.C. Super. Nov. 1, 2006). In a misappropriation of trade secrets matter, the defendant compelled the court to order the production of inaccessible s from over 400 back-up tapes held by the plaintiff. The plaintiff objected because the production would require an undue burden and cost and would not likely uncover any probative evidence. The court examined five factors using a straightforward application of North Carolina Rule 26. It also noted the Guidelines from the Conference of Chief Justices would provide the proper legal guidance for e-discovery issues. The court analyzed and balanced the following factors: (1) the burden and expense of production; (2) the needs of the case; (3) the amount in controversy; (4) any limitations on the parties' resources; and (5) the importance of the issues at stake. The court found the potential for discovery of probative evidence was too great to deny Defendants motion and the evidence central to the defendants case may be uncovered by the inquiry. However, the court noted the discovery costs were unknown and reserved the right to re-examine any cost-shifting issues until the final costs were determined by the plaintiff. The court required the parties to equally split the costs of restoration. NOTE: This case is the companion case to Bank of Amer. Corp. v. SR Int l Bus. Ins. Co., 2006 WL (N.C. Super. Nov. 1, 2006), which the court filed concurrently. Wyeth v. Impax Lab. Inc., 2006 WL (D. Del. Oct. 26, 2006). In a patent infringement claim, the defendant filed a motion to compel electronic documents from the plaintiff in their native file format with complete metadata instead of in the already produced TIFF format. The defendant argued it was entitled to an entire electronic database of documents in its natural state, but the plaintiff argued there was no particular need for the native files. Agreeing with the plaintiff, the court found the parties did not agree to produce native files at the pre-discovery conference. The court also noted the defendant could not show a need for the native file documents. The court used Delaware s Default Standard for Electronic Discovery as authority and stated if parties cannot agree to a file format before discovery occurs, imaged files shall be the default format. The plaintiff also argued in favor of shifting half of the discovery costs to the defendant, which included imaging a large amount of documents for a litigation database. The court denied the cost-shifting claim because the defendant is not the only party benefiting [sic] from the organization of these documents into the database. It held the plaintiff was also a beneficiary of its imaged files and it was not equitable to force the defendant to pay for the electronic organization of the opposing party s database. 147

148 Quinby v. WestLB, 2006 WL (S.D.N.Y. Sept. 5, 2006). In an employment discrimination suit, the defendant sought a court order requiring the plaintiff to bear a portion of the costs for restoring and searching backup tapes. The defendant hired Kroll Ontrack to restore and search data from the following locations: 171 backup tapes; Kroll Ontrack s archives from a previous matter; and backup tapes containing for employees who worked outside the United States. The plaintiff argued the costs should not be shifted since the defendant had a duty to preserve the requested in an accessible format. The defendant argued its only duty was to preserve the evidence, it had no duty to preserve the data in a particular format, and a restoration of so many documents should fall on the plaintiff. The court agreed in part, holding the producing party does not have an explicit duty to preserve evidence in an accessible format. However, the producing party will bear the cost of producing any evidence preserved in an inaccessible format after litigation is reasonably anticipated. The court stated this would [P]revent parties from taking unfair advantage of a self-inflicted burden by shifting part of the costs of undoing the burden to an adversary. However, it if was not reasonably foreseeable that the evidence at issue would have to be produced, the responding party who converts the evidence into an inaccessible format after the duty to preserve evidence arose, could still seek to shift the costs associated with restoring and searching that evidence. For a small portion of the defendant s inaccessible data that the defendant could not have reasonably anticipated producing, the court relied on the Zubulake seven-factor cost-shifting test and ruled the plaintiff should share 30 percent of the production costs. See also Quinby v. WestLB AG, 2007 WL (S.D.N.Y. Jan. 4, 2007) (amending the court s original cost-shifting decision relating to backup tape restoration costs). Eastman Kodak Co. v. Sony Corp., 2006 WL (W.D.N.Y. July 20, 2006). The district court affirmed the Special Master s Report and Recommendation requesting, inter alia, to deny the defendant s motion to compel the plaintiff to more specifically correlate information produced electronically via a computer server, CD-Rom and DVD s. Asserting deprivation of due process, the defendant argued the practical impossibility of finding relevant documents hidden in the electronic equivalent of 300 million pages. After performing searches on the contested server, the Special Master found the server appeared to be organized in a usable format. Although the court recognized substantial time, effort and expense would be required to sort through the produced documents, the court found this reasonable in light of the billions of dollars at issue in the case. Ruling the documents were accessible, had been produced in the form in which it is usually maintained, and that the plaintiff was in no better position to correlate the information to the defendant s discovery requests than was the defendant, the court denied the defendant s motion to compel. Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL (M.D. Fla. July 19, 2006). In this suit filed to enforce a patent infringement settlement agreement, the court granted the plaintiff s motion for Rule 37 sanctions against the defendant for failing to comply with the court s order to produce responsive documents. In seeking sanctions, the plaintiff argued the defendant s production efforts were sparse at best, having received only a limited number of financial documents and no . While admitting to only producing five s during the initial disclosure, the defendant maintained it had since provided the plaintiff with 2,000 pages of electronic documents from its system. The defendant argued the documents had been obtained after a detailed and exhaustive keyword search resulting in over 17,000 potentially relevant documents which had to be organized, compiled, reviewed, Bates stamped and converted into the appropriate format. However, the defendant failed to provide sworn affidavits supporting its assertion that the delay in production was necessary to avoid undue burden and expense. The court found the defendant s argument without substantial justification, and issued a 148

149 sanction in the amount of $1,500 against the defendant as a reminder for parties and their counsel to cooperate when conducting litigation. Rousseau v. Echosphere Corp., 2005 WL (W.D. Pa. Aug. 30, 2005). In a suit arising from unlawful termination allegations, the defendant sought attorney s fees and costs from the plaintiff s counsel. The defendant claimed it had fired the plaintiff for intentionally using two different social security numbers on his job application materials. However, the plaintiff argued this was merely a mistake caused by mild adult dyslexia and memory impairing mental illnesses. During the litigation, the defendant filed a Rule 37 sanctions motion for dismissal claiming the plaintiff "abus[ed] the discovery process, perpetrat[ed] a fraud on this Court and attempt[ed] to conceal the one document that would expose Plaintiff's fraudulent conduct." To support its argument, the defendant pointed to an produced by the plaintiff that undermined the plaintiff s dyslexia and mental illness argument. Although it did not grant the motion, the court allowed the defendant an additional 60 days for conducting discovery about the belated production. Following the order, the plaintiff admitted he intentionally used the two social security numbers, and the case was dismissed with prejudice by stipulation of the parties. In addressing the issue of attorney s fees and costs, the court determined the plaintiff s attorney committed unreasonable and vexatious conduct that multiplied the proceedings because the attorney knew about the but continued filing various motions and an appeal. Thus, the court required the plaintiff s attorney to personally satisfy the excess costs, expenses and attorneys' fees it reasonably incurred because of his conduct. News Am. Mktg. In-Store, Inc. v. Marquis, 862 A.2d 837 (Conn. App. Ct. 2004). An employer sued a former employee for accessing and misusing the employer s computer system with the intent of distributing the information to a competitor. The employee, who downloaded computer data and s without authorization, never actually shared the stolen information with a competitor. The employer argued it was entitled to reimbursement for attorney s fees and the cost of investigating the employee s computer. The trial court refused to award costs, finding no actual injury occurred because the evidence showed the employee had not looked at the documents after taking them and the employee ultimately destroyed the documents. On appeal, the appellate court confirmed the trial court s decision and declined to award costs, finding the employer did not prove actual injuries. Toshiba Am. Elec. Components, Inc. v. The Superior Court of Santa Clara County, 21 Cal. Rptr. 3d. 532 (Cal. Ct. App. 2004). Alleging misappropriation of trade secrets, breach of fiduciary duty, and unfair competition claims, the plaintiff moved for production of relevant evidence contained on more than 800 backup tapes and asked that the defendant bear the costs of retrieving the data. The defendant objected, claiming undue burden and expense. The defendant also revealed that some of the tapes had become obsolete, making the data accessible only through the use of specialized tools. The plaintiff contended that it should not be penalized because the defendant chose to keep records in a format difficult for retrieval. Without comment, explanation or suggestion of a sampling protocol, the trial court ordered the defendant to produce the backup tape data and to bear production costs. On appeal, the court declined to apply the Zubulake seven-factor cost-shifting test and instead referenced California Code of Civil Procedure 2031, stating that our Legislature has identified the expense of translating data compilations into usable form as one that, in the public's interest, should be placed upon the demanding party. The appellate court required the plaintiff to pay for translating the backup tape data. The court stated that the plaintiff could seek a protective order or file a motion to compel production if asked to pay costs that it finds unreasonable and unnecessary. The court indicated that sampling would be an 149

150 appropriate test for determining necessity and remanded the case for a determination on whether the backup tapes were necessary and reasonable. Sempra Energy Trading Corp. v. Brown, 2004 WL (N.D.Cal. Nov. 30, 2004). In a discovery dispute relating to a preliminary investigation of gas-price increases, the court ordered the plaintiff to restore, review and produce responsive spanning a 15-month period. The plaintiff brought a motion for costs stating it was not a named party to the investigation. Denying the request, the administrative law judge determined the party was not an uninvolved third party and thus should bear production costs. Several months later, the judge held another discovery hearing to implement a faster review process and amended the early order to expedite the review process. The plaintiff then filed the instant action in district court, challenging the discovery orders relating to the underlying investigation and claiming irreparable injury as it had already spent $1.4 million in attempting to comply with the discovery orders. The court refused to exercise its jurisdiction and declared the plaintiff s litigation costs did not demonstrate irreparable injury. The court dismissed the action but declared the plaintiff could pursue other remedies if warranted. BASF Fina Petrochemicals Ltd. Partnership v. H.B. Zachry Co., 2004 WL (Tex. Ct. App. Nov. 18, 2004). In a breach of contract action, the defendants subpoenaed electronic data from a non-party. The non-party responded by producing 30,000 s and attachments, 70 megabytes of data, 8,000 spreadsheets, and hard copy documents. The non-party requested legal fees and costs from the defendants for collecting, reviewing and producing this data based on a state statute requiring a party to reimburse a non-party for reasonable production costs. The non-party argued the costs and attorneys fees were an undue burden or expense they suffered as a result of responding to the defendants subpoena. The trial court awarded the nonparty production costs but denied attorneys fees, on the grounds that the statute excluded attorney fee awards. On appeal, the appellate court affirmed and held the statute did not include attorney s fees as part of production costs and the attorneys fees were not an undue burden or expense, absent a showing that the requesting party did not take reasonable steps to limit the scope of discovery. Lipco Elec. Corp. v. ASG Consulting Corp., 2004 WL (N.Y. Sup. Ct. Aug. 18, 2004). The plaintiffs sought to compel discovery of relevant electronic files, data and backup tapes from the defendants, despite the fact the defendants had already produced hard copies of the electronic documents at issue. The plaintiff asserted that the only way it could confirm the accuracy of the hard copy data was by obtaining the raw data in computerized form. In response, the defendants argued that extraction of the electronic data would be difficult, costly, and time-consuming, even if the requested data was material and necessary to the action. The defendants claimed they would need to hire an expert to retrieve the documents because they could not extract the data from hard drives or backup tapes without assistance. The court noted that, under New York state law, the party seeking discovery must bear the costs of production. Concluding that the electronic data was discoverable, the court noted it need only determine whether the material is discoverable and whether the party seeking discovery is willing to bear the cost of production. The court declared it was unable to order production of the electronic data until the plaintiffs established they would bear production costs. The court ordered the parties to supply a detailed breakdown of the electronic data s location, procedures used to extract it, and the costs involved. Noting that [d]iscovery has been proceeding at a snails pace, if at all, the court also appointed a special referee to manage, arrange, and monitor the e-discovery progress. Hagemeyer North American, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594 (E.D.Wis. 2004). In a discovery dispute involving two corporations, the plaintiff moved to compel the defendant to conduct and bear the costs of electronically searching backup tapes already produced 150

151 by the defendant. The plaintiff also sought to compel production of contained on additional backup tapes not produced to the plaintiff. In response, the defendant argued it would be costly and time-consuming to produce the additional backup tape and to search the alreadyproduced backup tapes. The court determined that the plaintiff failed to establish additional relevant backup tape data existed and, as a result, denied the plaintiff s motion to compel additional documents. In assessing whether cost-shifting for the backup tapes already produced was warranted, the court adopted the Zubulake seven-factor cost-shifting analysis. The court approved the sampling approach conducted in Zubulake and ordered the defendant to recover responsive data from any five backup tapes of the plaintiff s choosing. The court would then assess whether the cost of recovering s from the remaining backup tapes would be proportionate to the likely benefit. Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D.Ill. 2004). In a class action sexual harassment lawsuit, the plaintiff requested the defendant bear the costs of searching 94 backup tapes for relevant s. The plaintiff based its argument on a sample search of three backup tapes, purportedly containing a large number of relevant documents. The defendant disputed the volume of relevant documents recovered and asserted it should not be responsible for the costs since only a small number of the recovered documents contained relevant data. In conducting its sampling analysis, the plaintiff retained Kroll Ontrack to retrieve relevant s from three tapes, conduct keyword searches, and load the results into an online review tool. Kroll Ontrack discovered 8,660 documents relating to eight search terms provided by the plaintiff. In analyzing who should bear the costs, the court adopted the seven-factor Zubulake test and added an eighth factor, which required the court to weigh the importance of the requested discovery in resolving the issues at stake in the litigation. Balancing these eight factors, the court determined cost-shifting was appropriate and ordered the plaintiff to pay 75 percent of the costs of restoring the backup tapes, searching the data, and transferring it to the online review tool. Zenith Elec. Corp. v. WH-TV Broad. Corp., 2004 WL (N.D. Ill. July 19, 2004). In a breach of contract action, the plaintiff and the defendant filed separate motions to vacate litigation costs awarded against them pursuant to a federal statute. The costs, which related to the production of electronic documents by third-party defendants, involved the printing of electronic documents, as well as other e-discovery costs. The court denied the award of costs for printing the documents, noting that printing was a convenience and the documents could have been produced in their original electronic form. The court also refused to award expenses for the e-discovery costs, stating such costs were not recoverable under a federal statute. One component of the e- discovery costs related to 19 disks containing files that were originally printed by the third-party defendants at a cost of more than $100,000. After this paper production, the defendant requested these same documents be produced electronically because the printed copies lacked metadata and the electronic files could be more easily searched. The district court granted the request. The third-party defendants then hired a consultant to categorize the disks and redact privileged documents, incurring an additional $182, in costs. The court declined to award any of the costs relating to the 19 disks. Multitechnology Servs. v. Verizon Southwest, 2004 WL (N.D. Tex. July 12, 2004). In a discovery dispute relating to the allocation of costs for responding to interrogatories, the defendant sought a protective order declaring that it would cost $60,000 to produce the requested information, which was in electronic format. A magistrate judge ordered the plaintiff to pay half of the costs. In response to the order, the plaintiff argued that it was requesting only accessible data, making cost-shifting inappropriate in this case under the Zubulake seven-factor test. Finding cost-shifting was fair, the magistrate asserted that requiring the parties to evenly shoulder the 151

152 expense is the most effective resolution because it balances the benefit of the discovery for [the plaintiff] and provides [the defendant] with incentive to manage the costs it incurs in answering [the plaintiff s] interrogatories. The magistrate further classified the expenses as court costs that the prevailing party could recover. See also Multitechnology Servs. v. Verizon Southwest, No. 4:02- CV-702-Y (N.D. Tex. July 19, 2004) (affirming the magistrate judge s decision). OpenTV v. Libertate Technologies, 219 F.R.D. 474 (N.D.C.A. 2003). The plaintiff requested that the defendant produce copies of its source code for various products at issue in the litigation. The defendant objected to the request, claiming that producing this data would be overly burdensome, but offered to make the source code data available for review at its facilities. The plaintiff rejected this offer, claiming that it inappropriately shifted the costs of production to the requesting party as the code must be extracted at its expense. Relying on the analysis set forth in Zubulake cases, the court found that the source code data was stored in an inaccessible format for purposes of discovery. The court used the Zubulake seven factor balancing test to determine that the parties should split the costs of extracting the data equally, with the defendant bearing the copying costs once the data has been extracted. Xpedior Credit Trust v. Credit Suisse First Boston, 2003 WL (S.D. N.Y. Oct. 2, 2003). The plaintiff moved for an order to compel the defendant to produce certain electronic documents in connection with the breach of contract action. The defendant countered with a motion for a protective order requiring the plaintiff to bear half the costs of producing the electronic documents. The documents at issue reside on optical disks and DLT tapes. Applying the Zubulake seven factor cost shifting test, the court found that cost shifting was not appropriate and ordered the defendant to bear its own costs in producing the electronic data. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). In a gender discrimination suit against her former employer, the plaintiff requested that the defendant produce [a]ll documents concerning any communication by or between UBS employees concerning plaintiff. The defendant produced 350 pages of documents, including approximately 100 pages of . The plaintiff knew that additional responsive existed that the defendant had failed to produce because she, in fact, had produced approximately 450 pages of correspondence. She requested that the defendants produce the from archival media. Claiming undue burden and expense, the defendant urged the court to shift the cost of production to the plaintiff, citing the Rowe decision. Stating that a court should consider cost-shifting only when electronic data is relatively inaccessible (such as in this case), the court considered the Rowe 8-factor cost shifting test. The court noted that the application of the Rowe factors may result in disproportionate cost shifting away from large defendants, and the court modified the test to 7 factors: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production compared to the amount in controversy; (4) the total cost of production compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issue at stake in the litigation and; (7) the relative benefits to the parties of obtaining the information. The court ordered the defendant to produce, at its own expense, all responsive existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The court determined that only after the contents of the backup tapes are reviewed and the defendant s costs are quantified, the court will conduct the appropriate cost-shifting analysis. See also Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003). Cognex Corp. v. Electro Scientific Indus., Inc., 2002 WL (D.Mass. July 2, 2002). The plaintiff moved to compel the defendant to search its electronic backup tapes for documents responsive to the plaintiff s requests for production. Arguing that it had already conducted a lengthy 152

153 and reasonable search of paper and electronic based documents, the defendant contended that the cost and burden of searching the backup tapes would be unreasonable. The plaintiff proposed that the court split the costs associated with the request, or in the alternative, offered to assume all costs associated with the request. In spite of the plaintiff s willingness to bear costs, the court denied the motion to compel production, noting that no record of conscious destruction of documents or serious discovery discrepancy existed. The court further stated [t]here is something inconsistent with our notions of fairness to allow one party to obtain a heightened level of discovery because it is willing to pay for it. Computer Assocs. Int l, Inc. v. Quest Software, Inc., 2003 WL (N.D.Ill. June 3, 2002). The plaintiff brought a copyright infringement and trade secret misappropriation suit against six of defendant s employees arising from improper use of some of plaintiff s software source code. The plaintiff asked the defendants to make specific work and home computer hard drives available for electronic imaging so that the plaintiff could search for and reconstruct deleted files that would be otherwise undiscoverable. The defendants argued that the drives contained privileged information relating directly to this litigation and worked with a computer consultant to remove the privileged information from the images and indicate where the removed information was located. The defendants filed a motion to require the plaintiff to pay for the computer consultation that was necessary to prepare the drives for disclosure. After seeking advice from the Rowe 8-factor cost shifting test, the court determined that the defendants costs were analogous to the review of documents for privileged information and should not be shifted to the requesting party. Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550 (W.D.Tenn. 2003). In a trade secret violation suit, the defendant moved for the production of approximately 996 network backup tapes and argued that the plaintiff should bear production costs. The defendant also requested that the court appoint a special master to aid in the discovery process. The plaintiff objected to the defendant s requests stating that the request was unduly burdensome because extracting the data from the backup tapes and reviewing it for relevance and privilege will be astronomically costly. The parties did not dispute the relevance of the electronic data at issue. Agreeing that producing the backup data as a whole would be burdensome on the plaintiff, the court applied the Rowe 8 factor cost-shifting test to determine burden and cost. Finding that the majority of the factors favored shifting a portion of discovery costs to the defendant, the court outlined a detailed discovery protocol. Pursuant to Fed.R.Civ.P. 53(b), the court appointed a special master to oversee discovery and to review the data. The court also ordered the plaintiff s vendor to search the extracted data using the keywords identified in Appendix A to this order or otherwise agreed upon by the parties or directed by the special master and to produce to [the defendant] a complete list of the files identified by the backup tape restoration keyword search. Byers v. Illinois State Police, 2002 WL (N.D. Ill. June 3, 2002). In an employment discrimination suit, the plaintiffs sought an order compelling the defendants to produce archived e- mails. The court stated, Based on the cost of the proposed search and the plaintiffs' failure to establish that the search will likely uncover relevant information, the court concludes that the plaintiffs are entitled to the archived s only if they are willing to pay for part of the cost of production.requiring the plaintiffs to pay part of the cost of producing the s will provide them with an incentive to focus their requests. The court granted the motion to the extent that the plaintiffs bear the cost of licensing the archived software while the defendants continue to bear the expense of review for responsive, privileged, and confidential documents. In re Bristol-Myers Squibb Securities Litigation, 2002 WL (D.N.J. Feb. 4, 2002). The court modified the plaintiff s original discovery cost commitment where the defendants "dumped" an extraordinary number of paper documents resulting in a prohibitive copying charge. The court also 153

154 denied the defendant s motion for the plaintiff s one-half cost contribution for document scanning costs, but instead required the plaintiff to pay only for the nominal cost of copying compact discs. The court reiterated the importance of a Rule 26(f) conference to discuss electronic discovery issues, including the fair and economical allocation of costs. Rowe Entertainment, Inc. v. The William Morris Agency, 2002 WL (S.D.N.Y. Jan. 16, 2002). Denying defendants motion for a protective order insofar as it sought to preclude the discovery of altogether, the court adopted a balancing approach, consisting of eight factors, to determine whether discovery costs should be shifted. See also Rowe Entertainment, Inc. v. The William Morris Agency, 2002 WL (S.D.N.Y. May 9, 2002). After reanalyzing and reaffirming Judge Francis eight factor balancing test, the court upheld the January 15, 2002 Order that granted the defendants motion to shift the costs of production of their communications to the plaintiff. GTFM, Inc., v. Wal-Mart Stores, 2000 WL (S.D.N.Y. Nov. 9, 2000). The court allowed the plaintiff to recover fees for the inspection of Wal-Mart s computer records and facilities by plaintiff's expert and also upheld fees and expenses caused by Wal-Mart s failure to provide accurate discovery information in response to valid discovery requests. The court found the award of expenses reasonable in view of the prior repeated misinformation provided by Wal-Mart concerning the availability of information.... Zonaras v. General Motors Corp., 1996 WL (S.D. Ohio Oct. 17, 1996). In this case, the plaintiff sought to compel discovery of data compiled concerning different crash test dummy tests. In response, the defendant GMC asserted that it produced data tracings and backup materials for all but eleven of these tests, and objects to production of the remaining tests as unduly burdensome and expensive. After balancing the elements outlined in Rule 26(b)(2)(iii), the court ordered the defendant GMC to produce data tracings and backup materials of the eleven tests where the benefits of the discovery outweighed the expense of production. Because admissibility of the electronic evidence was still undecided, the court ordered the plaintiffs to pay half the production costs. Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio C.P. 1996). The court ordered discovery of certain documents from defendant s database. Judge stated that the defendant cannot avoid discovery simply because their own record keeping scheme makes discovery burdensome. The court ordered the defendant to pay costs of the discovery. Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL (S.D.N.Y. Nov. 3, 1995). The court found that the law is clear that data in computerized form is discoverable even if paper copies of the information have been produced. The producing party can be required to design a computer program to extract the data from its computerized business records. But such an order is subject to the court's discretion as to the allocation of the costs of designing such a computer program. In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL (N.D. Ill. June 15, 1995). The court found that expense of retrieving electronic data was mainly due to defendant s own record-keeping scheme. As such, the court required the defendant to produce its responsive, computer-stored at its own expense, subject to some limitations. The court also instructed the plaintiffs to narrow the scope of their request. Parties were also encouraged by the court to confer regarding scope of requests for s. Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., 1991 WL (E.D. Pa. June 17, 1991). An unwieldy computerized record-keeping system, which requires heavy expenditures in money and time to produce relevant records, is simply not an adequate excuse to frustrate discovery. The 154

155 plaintiff were required to pay for copies of any documents on microfilm/microfiche which the plaintiff requests, while defendants bear the burden of searching and producing the documents. Williams v. Du Pont, 119 F.R.D. 648 (W.D. Ky. 1987). The discovering party must bear costs of data production and reimburse responding party for a portion of its expense in assembling the database. Delozier v. First Nat l Bank of Gatlinburg, 109 F.R.D. 161 (E.D. Tenn. 1986). A court will not shift the burden of discovery onto the discovering party where the costliness of the discovery procedure involved is entirely a product of the defendant's record-keeping scheme over which the plaintiff has no control. Bills v. Kennecott Corp., 108 F.R.D. 459 (C.D. Utah 1985). The court denied defendant s motion requiring the plaintiff to pay the cost the defendant incurred in producing a printout of computer data that the plaintiff sought through discovery. The court based its holding on that the amount of money involved was not excessive or inordinate, that the relative expense and burden in obtaining the data would have been substantially greater for the plaintiffs as compared with the defendant, that the amount of money required to obtain the data as set forth by the defendant would have been a substantial burden to the plaintiffs, and that the defendant was benefited to some degree by producing the data. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1982). [W]e do not think a defendant should be penalized for not maintaining his records in the form most convenient to some potential future litigants whose identity and perceived needs could not have been anticipated. Where the expense of creating computer programs that would locate the desired data was the same for both parties, the court ordered that the party seeking the information must bear the cost of production. Preservation & Spoliation Micron Tech., Inc. v. Rambus, Inc., No SLR (D. Del. Jan. 2, 2013). On remand in this patent infringement case, the issue for the District Court was whether the plaintiff acted in bad faith when it engaged in the spoliation of evidence, thus rendering the patents-in-suit unenforceable against the defendant. Assessing the question of bad faith spoliation, the court provided four main categories of facts that support a finding of bad faith: 1) facts that show that the plaintiff s document retention policy was adopted only as a weapon for litigation; 2) facts that show that the plaintiff s document retention policy was selectively executed, with suspicious documents discarded; 3) facts that show that the plaintiff knew of the impropriety of the document retention policy, minimizing discussion thereof via , and; 4) plaintiff s litigation misconduct, and misrepresentations in depositions about the number of shred days. In determining that the plaintiff s behavior was consistent with all four categories of facts, with a focus on the fact that the document retention policy was executed with the intention to impede the fact-finding efforts of defendant, the court concluded that the appropriated sanction was to declare the patents-in-suit unenforceable against the defendant. Day v. LSI Corp., 2012 WL (D. Ariz. Dec. 20, 2012). In this employment case, the plaintiff alleged that the defendant s General Counsel failed to preserve relevant documents, which included those in the possession of a relevant custodian who was involved in the plaintiff s hiring and firing. After receiving notice of the plaintiff s potential claims, the General Counsel issued a litigation hold notice, but forgot to issue the notice to the particularly relevant custodian. Six months later, the custodian was finally identified, but efforts to retrieve his ESI resulted in an incomplete record of data, along with several other categories of information allegedly destroyed because of the General Counsel s preservation failures. Noting that the preservation failures were evidence 155

156 that the General Counsel had a culpable mind, the court imputed the General Counsel s culpable mind to the defendant, as a whole; thus, sanctions were warranted. Based on the fact that lost evidence that was highly relevant for one of the plaintiff s claims and that there was a high risk of substantial prejudice, the court found that an adverse inference instruction at trial, as well as $10,000 in monetary sanctions, is appropriate in this case. E.I. DuPont de Nemours and Co. v. Kolon Industries, Inc., 2012 WL (E.D. Va. Dec. 13, 2012). In this trade secret litigation, plaintiff sought attorneys fees in the total amount of nearly $19 million in fees related to defendant s spoliation of evidence and misappropriation of trade secrets pursuant to the Virginia Uniform Trade Secrets Act (VUTSA), and over $10 million in nontaxable costs pursuant to the court s inherent authority under 28 U.S.C VUTSA provides that [i]f the court determines that... (ii) willful and malicious misappropriation exists, the court may award reasonable attorneys fees to the prevailing party. Following two years of discovery and motions practice, a jury found that the defendant had willfully and maliciously misappropriated and used 149 of the plaintiff s trade secrets, which the court in this case recognized. The court thus moved on to address the reasonableness, under Virginia law, of the plaintiff s request for fees related to defendant s spoliation and misappropriation of trade secrets, ruling that the court s inherent federal authority did not overcome the assessment of reasonableness under state law. In the end, the court stated that further briefing is required to determine reasonableness of the plaintiff s fee request, and denied the award of non-taxable costs based on lack of support for that award under federal or state law. Haskins v. First Am. Title Ins. Co., Slip Copy, 2012 WL (D.N.J. Oct. 18, 2012). In this putative insurance class action, the parties disputed whether the defendant must issue a litigation hold to its agents. The defendant argued that it should not be forced to issue a litigation hold because it has no possession, custody, or control over the relevant title insurance closing documents, which were in the physical possession of its agents. Noting that a party can maintain control of documents without having physical possession, the court stated that a party has control of documents when it has a contractual right to access them from its agents. The court then looked to a typical contract between the defendant and an agent. The contract stated that the agent was to make all Documentation available for inspection and examination by First American at any reasonable time upon request by First American. Because the defendant had a contractual right to access the closing documents at any reasonable time, the court hold that the defendant was in possession, custody or control, and thus must issue a litigation hold. Carrillo v. Schneider Logistics, Inc., 2012 WL (C.D. Cal. Oct. 5, 2012). In this wage and hour violations case, the plaintiffs filed a motion to compel after receiving what they determined to be an incomplete ESI production. The defendant was ordered to produce additional ESI, and thus produced an additional 23,000 documents, many of which related to categories of documents the defendant previously claimed did not exist. However, during subsequent depositions, the defendant s employees were unable to answer basic questions about the defendant s search for responsive documents, which led the plaintiffs to file this motion for sanctions. The court stated, To date, [the defendant] sill has not searched a significant portion of its electronically stored information, nor has it provided any satisfactory assurance to the Court that such documents have not been destroyed during the course of this litigation. The defendant attempted to justify its behavior on account that it did not physically possess the server that stores the relevant s, but the court ruled that argument immaterial. Thus, based on its distrust of the defendant to conduct a good faith search, the court ruled that an outside vendor shall collect s and other ESI. Furthermore, the court ordered sanctions, the amount of which are yet to be determined. 156

157 U.S. ex rel. Baker v. Cmty. Health Sys., Inc., 2012 WL (D.N.M. Oct. 3, 2012). In this dispute under the False Claims Act, the court reviewed recommendations for sanctions against the government for failing to issue a proper litigation hold. While the relator filed its complaint in 2005 and the defendants rejected the government s offer to settle in late 2008 (the point at which the court found that the government reasonably anticipated litigation), the government did not issue a litigation hold until 2009 when it intervened. Moreover, the defendants established that the belated litigation hold was inadequate because the government failed to facilitate compliance from two key employees which led to the loss of evidence regarding a core issue of the case. The court quickly disregarded the government s argument that some of the key employees s were not relevant because the government claimed attorney-client privilege and work product over the documents. As the court put it, the government erred in trying to use the privileges as both a sword and a shield. Assessing the potential loss, the court found that [t]he failure to issue a timely hold, the failure to identify key witnesses, the failure to take measures to suspend routine deletion of ESI, the failure to put in place an adequate litigation hold... and the failure to monitor [the legal hold] all indicate that it is more probable than not that relevant evidence was destroyed. The court awarded production of some of the documents claimed privileged, attorneys fees and costs, and additional searching should the government fail to show why further search should not be required. Scentsy Inc. v. B.R. Chase LLC, 2012 WL (D. Idaho Oct. 2, 2012). In this copyright infringement case, the defendants challenged the plaintiff s method of issuing a litigation hold. The defendants moved the court to sanction the plaintiff because the plaintiff issued an oral litigation hold. In rebuttal, the plaintiff submitted that sanctions were inappropriate because if any relevant evidence was lost, it would have been deleted in good faith under its general retention policy, or when its lead designer s computer hard drive failed (before it knew the defendants existed). Further, the plaintiff argued that the specific sanction sought by the defendants, a forensic examination of the plaintiff s computer system, would constitute an undue burden under Fed.R.Civ.P. 26(b)(2)(B). The court sympathized with the plaintiff over the cost of a forensic examination, which could run into the millions of dollars, but did not let the plaintiff completely off the hook for its completely inadequate oral preservation request. Instead, the defendants will be allowed to depose the appropriate individuals in order to determine whether relevant evidence was destroyed. The court awarded attorney fees for the depositions to the defendants. Hynix Semiconductor v. Rambus, 2012 WL (N.D. Cal. Sept. 21, 2012). This patent infringement litigation stems from two federal cases, Hynix Semiconductor v. Rambus (N.D. Cal) and Micron Tech, Inc. v. Rambus (D.Del) with nearly identical facts that reached different conclusions regarding the defendant s alleged spoliation of evidence. Prior to litigation began, the defendant developed a new document retention policy and held several shred days, where employees were instructed to follow the defendant s policy of destroying s contained on backup tapes after three months. Both cases hinged on determining when litigation was reasonably foreseeable and gave rise to the defendant s duty to preserve. While the Micron court found that the parties were aggressive competitors and that litigation was inevitable, the Hynix court found that the evidence failed to show that the defendant targeted any specific documents or categories of documents and ultimately found no spoliation. On appeal, the Federal Circuit concluding that the Northern District of California applied too narrow of a standard of foreseeability and remanded the case for further consideration. Following reconsideration and an instruction that Micron was to be given preclusive effect regarding the defendant s duty to preserve and alleged spoliation, the court ultimately held that the evidence failed to show the defendant deliberately shredded documents it knew to be damaging. However, the court found that the defendant spoliated documents in bad faith or at least willfully. In determining which sanctions to impose, the court 157

158 rejected the plaintiffs arguments that dismissal was the only appropriate remedy when the case had already been fully litigated, the patents were declared valid, and there was no evidence that the defendant targeted specific documents for destruction. Instead, the court found that the most appropriate sanction was to strike from the record evidence that supported non-discriminatory royalty payments made to the defendant. The court found this sanction appropriately recognizes that the defendant s patents were declared valid, which also recognizes that the defendant s spoliation precludes it from a royalty payment that would place the plaintiffs at a competitive disadvantage. As such, the parties were ordered to brief the court on what a reasonable, nondiscriminatory royal rate would be. ADT Sec. Servs. Inc. v. Pinnacle Sec. LLC, 2012 WL (N.D. Ill. July 11, 2012). In this contract dispute, the plaintiff objected to the lower court s failure to hold that the defendant violated its duty to preserve relevant information by not issuing a litigation hold but instead issuing a blanket no-delete policy to preserve ESI. The lower court ordered the defendant to supply affidavits to describe the no-delete policy, with which the defendants complied, but refused to rule on the defendants compliance with its preservation obligations. In this case, the court decided not to address those affidavits, but instead ordered the parties e-discovery liaisons to meet and confer regarding the sufficiency of the defendants no delete policy, after which the parties may file a motion with the lower court. Next, the plaintiff objected to the lower court s ruling on the plaintiff s motion to compel the defendant to redo its search for responsive ESI. Specifically, the plaintiff contended that the defendant failed to search individual employee computers and backup tapes and that the defendant did not produce enough ESI compared to the plaintiff. Instead of denying the motion outright, the lower court decided to order the defendants to search seven employee computers for which there was evidence that they contained ESI missing from the initial production. The court in this case overruled the plaintiff s objection, based on the contention that the lower court s approach was reasonable, and thus not clearly erroneous or contrary to law. Omogbehin v. Cino, 2012 WL (D.N.J. June 20, 2012). In this race and national origin discrimination case, the plaintiff sought spoliation sanctions for the defendants alleged failure to preserve relevant s. The plaintiff argued that numerous s he believed were created within the seven month preservation timeframe were not produced, further asserting that the defendants intentionally destroyed or suppressed the production of relevant s. Citing declarations of the employees responsible for the production, the defendants contested that the ESI at issue never existed and that all s from the Lotus Notes system for the dates sought were produced. The court noted that a party proving spoliation must show the appearance of actual suppression or withholding of the evidence. Because the plaintiff failed to show that the alleged e- mails actually existed, the court denied spoliation sanctions. Goldmark v. Mellina, A T2 (N.J. Super. App. Div. June 18, 2012). In this contract dispute, the defendants counsel contested a sanction levied against his firm by arguing that his failure to preserve allegedly privileged s fell short of sanctionable conduct. Specifically, the defendants counsel argued that no case law supported the sanction because their conduct was not deliberately improper. Citing Rule of Court 4:10-2(e)(1), the court held that after a party determines that relevant material is privileged or protected from discovery, it must preserve that information. Furthermore, the court found that the defendants duty to preserve was triggered when their attorney logged the s as privileged, if not earlier. Upholding the $5,502 award of attorneys fees and costs, the court stated that to allow the defendant or his counsel to destroy or carelessly lose the s thereafter would make a mockery of the state s discovery rules. Prestige Global Co. Ltd. v. L.A. Printex Indus., Inc., 2012 WL (S.D.N.Y. May 3, 2012). In this copyright infringement case, the defendants raised several issues with the plaintiffs 158

159 discovery production, alleging that they negligently failed to search for and produce several categories of documents and deleted relevant . Accordingly, the defendants sought an order to permit forensic examination of the plaintiffs computer files. To support their allegations, the defendants relied on testimony from a witness who said she was not shown the defendants discovery requests or asked to search for the documents identified in the requests. The court rejected this argument, finding that the plaintiffs identified documents produced for each category via bates number and further found no requirement that a particular witness, even one designated under Rule 30(b)(6), conduct her own search for documents. Finally, the court found no evidence of spoliation, noting that any s related to garments implementing the allegedly copyrighted design were likely deleted by the end of 2009 well before the plaintiffs preservation obligation arose with the filing of the suit in March As such, the defendants motion for forensic examination of the plaintiffs computer was denied. Grabenstein v. Arrow Elecs., Inc., 2012 WL (D. Colo. April 23, 2012). In this employment discrimination and wrongful termination case, the plaintiff sought sanctions against the defendant former employer for deletion of s related to the plaintiff s request for disability benefits. At issue in this case was whether the defendant had a duty to preserve the in question before it had notice of impending litigation, and whether such deletion occurred in bad faith so as to warrant sanctions. The plaintiff argued that the defendant had such a duty under an EEOC retention regulation, 29 CFR , requiring an employer covered by [the ADA] to retain all personal records for one year after their creation, or until the dispute has been resolved when a discrimination charge has been filed against the employer. Although the court found the defendant adhered to its document retention policy, the defendant nonetheless had a duty to preserve under the EEOC regulation. In response to allegations of bad faith, however, the court found that the plaintiff did not sufficiently substantiate that the defendant deleted the s with the intent to withhold unfavorable information. Thus, the court found no bad faith in the defendant s adherence to a good faith document retention policy and denied the plaintiff s motion for sanctions. Brigham Young Univ. v. Pfizer, Inc., 2012 WL (D.Utah April 16, 2012). In this patent litigation, the plaintiffs filed a fourth motion for sanctions against the defendants for alleged discovery misconduct. Specifically, the plaintiffs argued that the defendants implemented unreasonable records management practices and that they lost or destroyed critical documents in violation of their duty to preserve. Additionally, the plaintiffs argued that the defendants had not altered their conduct following a 2009 court order that imposed $850,000 in sanctions for the defendants negligent discovery conduct that closely approach[ed] a finding of bad faith. With regard to the defendants records management policies, the court found that changes in control of documents over ten years old was the natural result of business transactions, and failed to see any attempts by the defendants to confound discovery. With regard to the defendants duty to preserve, the court was not persuaded by the plaintiffs argument that defendants were sensitized by earlier industry lawsuits which would impose an overbroad duty to preserve that would make it difficult for the [c]ourt to imagine how a party could ever dispose of information... because of the potential for some distantly related litigation that may arise years into the future. As such, the court denied the entire motion, finding that although the defendants discovery conduct was less than commendable at times, their overall conduct did not rise to a level warranting any of the severe sanctions requested United Factory Furniture Corp. v. Alterwitz, 2012 WL (D. Nev. Apr. 6, 2012). In this computer fraud case, the plaintiff sought mirror imaging of the defendants home computers due to the defendants history of tampering with and deleting electronic data. The plaintiff specifically argued that because the defendants tampered with expense accounts and accounts payable files 159

160 on plaintiff s computer server, they were highly likely to destroy relevant evidence on their personal computers. The defendants objected, alleging that mirror imaging would be personally intrusive. Weighing the potential benefits against the burdens, the court found that a majority of factors namely the substantial amount-in-controversy, the high likelihood that relevant ESI was on the drive, and the plaintiff s willingness to bear associated costs favored mirror imaging. Responding to the defendants privacy concerns, the court outlined a protocol where a neutral third party would examine the devices subject to a protective order and the clerk would lock the mirror images in an office vault unless allegations of spoliation arose. Pippins v. KPMG LLP, 2012 WL (S.D.N.Y. Feb. 3, 2012). In this class action labor litigation, the defendant filed a motion for a protective order to limit the scope of its ESI preservation obligations. At issue was whether the defendant was required to preserve all existing computer hard drives for thousands of former employees, or whether a random sampling would be sufficient to fulfill the preservation obligation. The Magistrate Judge denied the motion and ordered the defendant to preserve all hard drives until the parties reached an agreement on obtaining an appropriate sample or further ordered by the court. Appealing the denial, the defendant mainly argued that the Magistrate erroneously adopted an unreasonably broad definition of key players, ordered preservation without determining proportionality, and improperly imposed an affirmative obligation on the defendant in response to its motion for a protective order. On appeal, the court affirmed the Magistrate s opinion, acknowledging that preserving the hard drives is expensive, but that it would be premature to permit the destruction of any hard drives before discovery. The court held that relevance is a broad standard and, accordingly, all the hard drives are likely to contain relevant information. Finally, the court stated that it smacks of chutzpah to argue that the Magistrate failed to determine proportionality when the defendant refused to provide the evidence necessary to make that determination. Patel v. Havana Bar, Restaurant and Catering, 2011 WL (E.D.Pa. Dec. 5, 2011). In this discovery dispute, each party cross-motioned for sanctions citing discovery misconduct. At issue in the litigation was whether the plaintiff fell or jumped from a two-story balcony, as well as how intoxicated the plaintiff was at the time of injury. The plaintiff asserted that defendants spoliated evidence when they failed to preserve security tapes before they were routinely erased three weeks later. Conversely, the defendants contended that the plaintiff, through his sister-in-law, "spoon-fed friendly witness testimony" by soliciting testimony via Facebook and many of which were allegedly "lost" when the defendant requested them from the plaintiff late in discovery. Responding to the plaintiff's claim, the court found that the defendant spoliated evidence by failing to take reasonable measures to preserve the video and granted an adverse inference. Reviewing the plaintiff's conduct, the court took particular issue with the plaintiff concealing potential witness testimony that was required by Rule 26(a)(1)(A) and further considered their "missing" testimony spoliated. Thus, the court ordered an adverse inference against the plaintiff, while also ordering redeposition of five witnesses and awarding fees and costs to the defendants for time and money spent acquiring information they were entitled to at the outset of litigation. Oleksy v. General Electric Co., 2011 WL (N.D. Ill. Oct. 3, 2011). In this patent infringement case, the defendant requested reconsideration of a prior court order that compelled production of litigation hold documents. The defendant contended that at the time it deleted the data at issue, the relevance of the data was unforeseeable due to the allegedly countless ways by which future damages in an infringement case could be calculated. Noting that the scope of preservation is broader than the defendant assumed, the court reasoned that as soon as the defendant knew of the infringement claim, the "well-known" factors for an infringement damage calculation put the defendant on notice of issues that could be relevant to damages. Because the 160

161 defendant failed to specifically state why the relevance of the particular data was unforeseeable in light of these factors, the court denied the defendant s motion for reconsideration. Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., 2011 WL (N.D. Iowa Sept. 27, 2011). In this discovery dispute, the plaintiffs sought a default judgment alleging the defendants willfully destroyed ESI. Previously, the defendants produced seven computers/laptops, ten internal/external hard drives, and twenty-three compact discs to the plaintiffs expert for inspection and copying. Following the forensic examination, the plaintiffs expert identified that four external media devices and three drives were not produced for imaging, and noted that numerous documents, orphan files and s had been deleted or were missing. Citing the defendants status as a small company who is unsophisticated in the requirements of litigation and preservation of documents, the court denied the default judgment request. Further supporting the court s finding was the lack of bad faith present and the inability to prove the deleted documents were likely to be helpful to the plaintiffs claims. Pippins v. KPMG LLP, 2011 WL (S.D.N.Y. Oct. 7, 2011). In this action involving the Fair Labor Standards Act and New York State Labor Law, the defendant sought a protective order seeking to limit the scope of its preservation obligations, claiming it should not be responsible for preserving computer hard drives of thousands of former and departing employees. Instead, the defendant requested an order requiring it to only preserve a random sample of 100 hard drives that have already been preserved, or alternatively, that the plaintiffs be required to bear the preservation costs. Noting that relevancy determinations are difficult to make based on the defendant s own efforts to keep that information at bay, the court determined that each and every former and departing employee is a key player at this time. The court also cited that courts in its district have cautioned against the application of a proportionality test as it relates to preservation and found that permitting the destruction of hard drives at this early stage of litigation was inappropriate. Further, the court noted the ongoing burden is largely self-inflicted by the defendant due to its continued reluctance to work with the plaintiffs to generate a reasonable sample of the hard drives. Based on this analysis, the court denied the protective order and cost-shifting. Until a further order or agreement is reached, the court ordered the defendant to preserve the existing hard drives of all former and departing employees who are potential class members. Cannata v. Wyndham Worldwide Corp., 2011 WL (D. Nev. Aug. 10, 2011). In this federal sexual harassment and discrimination litigation, the defendants sought an emergency protective order to limit the scope of the plaintiffs requested deposition, claiming it was overbroad. Prior to this motion, the plaintiffs had received a court order to depose the defendants "person most knowledgeable" on several topics, including the defendants' litigation hold process. Noting that a litigation hold is generally not discoverable unless spoliation is at issue, the court determined the plaintiffs' request for information regarding the basic details surrounding the litigation hold (when and to whom the hold was issued, what categories of ESI were included in the hold, etc.) was reasonable. In denying the defendants' motion, the court further stated the request may ultimately benefit the defendants if questions arise regarding efforts to preserve ESI. E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., 2011 WL (E.D. Va. July 21, 2011). In this ongoing trade secrets litigation, the plaintiff sought sanctions alleging the defendant spoliated evidence by deliberately destroying relevant ESI and engaged in prolonged efforts to conceal misconduct. Offering a "no harm, no foul" defense, the defendant claimed that because many of the deleted files were recovered, no spoliation occurred and the plaintiff suffered no prejudice. Finding the defendant did not engage in a widespread effort to delete relevant information, the court however determined the litigation hold notices were inadequate and, according to forensic analysis, several key employees intentionally and in bad faith destroyed 161

162 approximately 12,836 s and 4,975 electronic files. Declaring these deletions significant in substance and number, the court imposed an adverse inference instruction and ordered payment of attorney fees and costs incurred as a result of the spoliation. Genger v. TR Investors, LLC, 2011 WL (Del. Supr. July 18, 2011). In this shareholder litigation, the defendant (an "international man of mystery") sought review of the Court of Chancery's judgment including, its award of $3.2 million in attorney fees and costs for the spoliation of ESI in violation of a preservation order. On appeal, the defendant argued the sanctions were disproportionate and excessive as he merely erased unallocated free space, which was not specifically prohibited by the order and did not did not result in the spoliation of material evidence. The defendant further argued that because normal computer use causes similar overwriting to occur, sanctioning this behavior would require the suspension of all computer activities every time a court issued a preservation order. Rejecting both arguments, the court determined the trial court's finding was based on narrow grounds related to evidence spoliation not rewriting in general and that the parties previously compromised, agreeing to the specified fee amount. In order to avoid future confusion, the court recommended that parties address the issue of unallocated free space in their preservation orders and document retention policies. Haraburda v. Arcelor Mittal USA, Inc., 2011 WL (N.D. Ind. June 28, 2011). In this employment discrimination suit, the plaintiff requested the court order the defendant to preserve e- mail evidence, claiming the defendant previously deleted s from the plaintiff's account without her permission and refused to issue a litigation hold prior to the Fed.R.Civ.P. 26(f) meet and confer. The defendant argued the plaintiff's request was premature as Rule 26(d)(1) prohibits a party from seeking discovery before the Rule 26(f) conference. Disagreeing with the defendant's argument, the court noted Rule 26(d)(1) prohibits requesting production not compelling preservation and stated that ruling to the contrary would leave a party with knowledge of an intent to destroy evidence without a remedy. Accordingly, the court found the plaintiff could suffer measurable prejudice based on the suit's heavy reliance on s if evidence was destroyed and ordered the defendant to implement a litigation hold. Gaalla v. Citizens Medical Ctr., 2011 WL (S.D. Tex. May 27, 2011). In this discovery dispute, the plaintiffs sought sanctions, alleging the defendants failed to preserve backup tapes, take timely snapshots of relevant accounts and deleted s. Citing Zubulake, the court noted that the duty to preserve generally does not extend to inaccessible backup tapes and declined to impose sanctions finding the plaintiffs failed to demonstrate any applicable exception to this general rule. Further, the plaintiffs failed to present evidence of bad faith, a prerequisite to severe sanctions in the Fifth Circuit. On the contrary, the court determined the defendants took reasonable preservation steps by issuing a timely litigation hold, taking multiple "snapshots" of relevant accounts and preserving available backup tapes. The court ordered the defendants to institute a "journaling process" to continue preserving all relevant accounts indefinitely in addition to the available backup tapes, which the plaintiffs forensic expert was given access to search. Finally, the court ordered the parties to reach a preservation agreement going forward. E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 2011 WL (E.D. Va. Apr. 27, 2011). In this trade secrets litigation, the defendant sought spoliation sanctions alleging the plaintiff deleted accounts and documents of four former employees containing evidence highly probative to its defenses. In light of a parallel criminal investigation into the former employee's alleged misappropriation, the government instructed the plaintiff to keep the matter confidential. Although the plaintiff's initial litigation hold issued to 18 potential custodians was twice expanded as the matter progressed, the defendant argued that critical information was lost due to the plaintiff's failure to incorporate employees likely to be relevant to the suit. Citing Victor Stanley, the court held 162

163 that the scope of a party's duty to preserve is not absolute, but must only be reasonable and proportional to the circumstances. The court found this standard did not require the plaintiff to anticipate preserving evidence potentially relevant to possible defense theories fashioned by the defendant. Accordingly, the court determined the plaintiff's preservation efforts did not constitute the willful spoliation required to grant an adverse inference instruction and denied the motion. Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL (W.D.N.Y. Apr. 21, 2011). In this business litigation, the defendant sought spoliation sanctions for the plaintiff's failure to implement a timely written litigation hold. Arguing that the plaintiff s oral litigation hold was insufficient, the defendant cited three s missing from the plaintiff's production as evidence of spoliation. However, noting that the record failed to reveal any relevant evidence had been destroyed or lost, the court distinguished Pension Committee and declined to follow the court's presumption in that case that a failure to implement a written litigation hold would support an inference of spoliation. Instead, the court found that the relatively small size of the plaintiff could support its reliance on direct oral communication and that the substantial number of documents so far produced refuted an inference of spoliation. Finding all relevant documents had been produced, the court further declined to permit a "fishing expedition" of discovery into the plaintiff's document preservation actions based on mere speculation. In re Delta/AirTran Baggage Fee Antitrust Litig., 2011 WL (N.D. Ga. Feb. 22, 2011). In this antitrust litigation, the plaintiffs sought spoliation sanctions alleging the defendant failed to suspend the automatic deletion procedures of its and backup tapes. Although the defendant issued a written litigation hold to 22 custodians after being served a Civil Investigative Demand (CID) from the Department of Justice (DOJ), the plaintiffs argued the defendant failed to apply this hold to its servers and backup tapes for three months. Reviewing the elements necessary to support a spoliation claim, the court found the defendant s preservation obligation upon receipt of the CID extended only to the DOJ and that it was not expected to anticipate the filing of a civil suit three months later. Refusing to substitute speculation for actual proof, the court determined that even if a duty to preserve had existed, the plaintiffs failed to demonstrate any evidence of prejudice. Finally, the court found the defendant s actions constituted at most negligence and not the bad faith conduct required to support spoliation sanctions in the Eleventh Circuit. Accordingly, the court denied the motion for sanctions. Daynight, LLC v. Mobilight, Inc., 2011 WL (Utah App. Jan. 27, 2011). In this intellectual property dispute, the plaintiff and third-party defendants appealed the district court s decision to grant default judgment as a sanction for ESI spoliation. Rejecting the argument that the sanction was excessive and unduly harsh, the court noted that Rule 37(g) of the Utah Rules of Civil Procedure concerns discovery violations greater than simple discovery abuse (as opposed to Rule 37(b)(2)) and does not require a finding of willfulness, bad faith, fault or persistent dilatory tactics or the violation of court orders before a court may sanction a party. Moreover, the court noted that even if such culpability was required, the appellants willfully and in bad faith destroyed ESI, as evidenced by a video wherein the appellants employees spoke of their destruction of potentially harmful evidence. In addition, the employees committed such actions as throwing the laptop off a building; running over the laptop with a vehicle; and stating [If] this gets us into trouble, I hope we re prison buddies. Finding this behavior demonstrated bad faith and a general disregard for the judicial process, the court affirmed the default judgment and award of attorneys fees and costs. Huggins v. Prince George s County, Maryland, 2010 WL (D. Md. Nov. 9, 2010). In this civil rights litigation, the plaintiff sought to modify a previously denied motion for spoliation sanctions, alleging a key county administrator s account had been deleted and purged in violation of its preservation obligations. Reviewing the magistrate judge s original findings, the court 163

164 agreed that the duty to preserve did not arise until a year after the administrator s employment ended and six months after his account was deleted in accordance with the county s standard operating procedure. Despite the fact that the administrator was a key player in the litigation, the court affirmed the absence of a culpable state of mind as the account was deleted pursuant to a neutral policy when no preservation duty existed. Finally, the court found that because the administrator s involvement was peripheral, the damage from losing his s was de minimis in light of all available evidence a finding supported by the plaintiff s failure to reference him in the original action despite awareness of his role. Accordingly, the court denied the motion for sanctions. Orbit One Commc ns, Inc. v. Numerex Corp., 2010 WL (S.D. N.Y. Oct. 26, 2010). In this corporate litigation, the defendant sought spoliation sanctions. Discussing preservation obligations, the court criticized the standard of reasonableness and proportionality articulated in Victor Stanley II and Rimkus Consulting Group as too amorphous to provide much comfort to a party deciding what to retain. Instead, the court advised parties to adhere to the Zubulake IV standard of retaining all relevant documents in existence at the time the duty to preserve attaches. Noting that ordinary negligence is sufficient in its circuit for a spoliation inference, the court found the plaintiffs did not adhere to appropriate preservation procedures by implementing an inadequate litigation hold, failing to involve a key IT employee, entrusting data to the individual with the greatest incentive to destroy it and allowing cavalier treatment of that information. Nevertheless, the court asserted that although a party s preservation efforts may be insufficient, sanctions are not warranted unless there is proof that some information has actually been lost and was relevant. In so holding, the court also noted it respectfully disagreed with the Pension Committee ruling that held some level of sanctions are warranted as long as any information was lost due to inadequate preservation practices. Despite the plaintiffs failure to engage in model preservation of ESI, the court denied the sanctions request determining there was insufficient evidence that any relevant information was destroyed. United States v. Suarez, 2010 WL (D.N.J. Oct. 21, 2010). In this federal criminal prosecution, the defendants sought sanctions citing the Government s failure to produce text messages sent between a cooperating witness and FBI agents, who had deleted the messages from their cell phones to free memory. According to its Corporate Policy Directive, the FBI retained log server data and data on backup tapes for only 90 days and was unable to produce the text messages despite keyword and manual searches. Before discussing the alleged spoliation, the court deemed the messages discoverable statements under the Jencks Act. The court then found no reasonable explanation as to why the Government delayed imposing a litigation hold until three months after it began searching for the text messages, nor as to why only some messages were deleted. Thus the court determined the Government violated its duty to preserve relevant data that was in its control during an ongoing investigation specifically aimed at prosecution. Citing the relative lack of criminal law in the Third Circuit regarding spoliation sanctions, the court relied on civil case law including Pension Committee and held the missing evidence was prejudicial and of paramount importance. Due to the absence of bad faith, the court issued a permissive adverse inference instruction. Phillip M. Adams & Assoc., LLC v. Winbond Elecs. Corp., 2010 WL (D. Utah Sept. 16, 2010). In this ongoing intellectual property litigation, the plaintiff objected to the magistrate judge s denial of terminating sanctions as moot. The plaintiff sought spoliation sanctions alleging the defendant deleted several documents when it switched over to a new server. In light of the defendant s claim that it has always had a reasonable document retention system, the plaintiff argued it was suspicious that only some s were deleted. The defendant also disputed that a 164

165 duty to preserve ESI existed and further argued that its lack of patent litigation experience rendered it unaware of any such duty. Rejecting the defendant s arguments as unconvincing and lacking merit, the court found the defendant had a duty to preserve and was on notice of a potential for litigation based on a well-publicized statement in a large class action lawsuit that affected the industry as a whole, in addition to a letter the defendant received notifying it of potential liability. Finding sufficient evidence of a duty to preserve and spoliation, the court permitted the plaintiff to present evidence on these matters to the jury and imposed a permissive adverse inference instruction sanction. Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL (D. Md. Sept. 9, 2010). In this intellectual property litigation, the plaintiff sought terminating and other sanctions arising out of the defendants' intentional spoliation of evidence and other litigation misconduct. The plaintiff identified eight discrete preservation failures, including the president of the defendant company's use of wiping software, failure to implement a litigation hold and failure to preserve an external hard drive, files and s following the plaintiff's demands and multiple court orders. Calling this a case of the "gang that couldn't spoliate straight," Judge Grimm remarked that through four years of discovery, the defendant president had actual knowledge of his duty to preserve, yet delayed and misrepresented the completeness of the ESI production and deleted, destroyed and otherwise failed to preserve evidence. The Judge stated that these failures "collectively constitute the single most egregious example of spoliation [that he has] encountered in any case in nearly fourteen years on the bench." Following a thorough discussion of preservation standards and spoliation laws among the Circuits, including in Pension Committee and Rimkus Consulting Group, Judge Grimm issued a default judgment for the copyright claim only and held that the defendant president pervasively and willfully violated court orders in civil contempt of court, ordering him to be imprisoned for up to two years, or until he paid the attorneys' fees and costs estimated to be a "significant amount." In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, and Prods. Liab. Litig., 2010 WL (C.D. Cal. July 20, 2010). In this products liability litigation, the court entered a preservation order based on the parties submissions regarding preservation methods and categories of content to be preserved for production and use in the ongoing multidistrict litigation. Among the ESI preservation requirements, the parties were ordered to retain existing documents in their existing form or in a reasonably usable format that would not result in loss of content or usability, including the preservation of metadata and attachments. Additionally, all subsequently created ESI was required to be retained in original or native format, or copied to an alternative storage device or media. The order also provided instructions for the identification of custodians and specified data that was not required to be preserved, such as system data created by the normal operation of computer systems. Finally, the order identified the permissible modifications and alterations of documents generally resulting from the routine maintenance and operation of computer systems. Passlogix, Inc. v. 2FA Tech., LLC, 2010 WL (S.D.N.Y. Apr. 27, 2010). In this licensing agreement litigation, the plaintiff sought sanctions through an adverse inference instruction, preclusion and costs, alleging the defendants failed to implement a litigation hold and spoliated electronic evidence. Despite admitting to the deletion of the s, text messages, Skype messages, and network and computer logs, the defendants denied the relevance of the electronic evidence to the pending case. Addressing the spoliation, the court reiterated that a litigation hold must be put in place and routine document retention/destruction policies must be suspended, which the defendants failed to accomplish. The court found the failure to preserve s and text and Skype messages constituted gross negligence while the failure to preserve computer logs was 165

166 intentional. Balancing the defendants litigation conduct with its status as a small corporation, the court determined that a $10,000 monetary fine was the appropriate remedy. State v. Huggett, No. 2009AP1684-CR (Wis.Ct.App. Apr. 6, 2010). In this criminal case, the State of Wisconsin appealed an order dismissing, with prejudice, an intentional homicide charge against the defendant. On the night of the homicide, sheriff s deputies seized two cell phones, which contained threatening voic s from the victim directed at the defendant and his girlfriend. Upon defense counsel s formal request to preserve all messages, the State admitted it had not preserved the voic s. Finding it reasonable the defendant would expect the State to preserve the voic recordings, the court determined this expectation made the State responsible for ensuring that it occurred. The failure to preserve the voic evidence violated the defendant s due process rights. Recognizing that it would be fundamentally unfair to induce reliance and then place preservation responsibility on the defendant, the court affirmed the case dismissal since the voic s would be central to a jury s application of self-defense and the defense of others standard. OCE N. Am., Inc. v. Brazeau, 2010 U.S. Dist. LEXIS (N.D.Ill. Mar. 18, 2010). In this trade secrets litigation, the plaintiff objected to the magistrate judge s recommendation that denied an adverse inference sanction for the defendants admitted failure to preserve instant messages. Recognizing that no dispute existed as to whether the defendants used the instant-messaging system and failed to save messages until after the suit was filed, the court determined that the defendants breached the duty to preserve. However, the court denied an adverse inference sanction finding an absence of evidence that the defendants acted with willfulness, bad faith or fault. The court further concluded that even if there had been evidence of the defendants culpability, the plaintiff failed to prove prejudice as a result of the spoliation since the missing messages did not contain the smoking gun regarding the misappropriation claim. Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL (S.D.Tex. Feb. 19, 2010). In this employment agreement dispute, the plaintiff sought sanctions, costs and attorneys fees, and a finding of contempt, alleging the defendants intentionally spoliated evidence and failed to produce requested discovery. Before addressing the parties specific arguments, the court noted that spoliation of evidence particularly of electronically stored information has assumed a level of importance in litigation that raises grave concerns and distract[s] from the merits of a case, add[s] costs to discovery, and delay[s] resolution. Moving to the case specifics, the court found the defendants intentionally lost, altered and deleted s, and sent the case back to the jury with a permissive adverse inference instruction. The court also awarded the plaintiff attorneys fees and costs incurred in the spoliation investigation. Notably, the court distinguished the recent Pension Committee ruling from the Southern District of New York, finding the differences between circuits in relation to culpability of parties limited the applicability of the approach taken in Pension Committee. The court identified an additional distinction in regard to the burden of proof in relation to relevance and prejudice of spoliated evidence. Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL (S.D.N.Y. Jan. 15, 2010). In this litigation involving hedge funds, the defendants sought sanctions, alleging the plaintiffs engaged in evidence spoliation and submitted false and misleading statements in regard to document preservation efforts. Originally, the thirteen plaintiffs discussed in this case failed to issue written litigation holds when the duty to preserve arose in Seven of the plaintiffs eventually issued written holds, while six plaintiffs failed to issue a written hold at any time. After defining negligence, gross negligence and willfulness in the discovery context, the court noted that following the final Zubulake opinion in July 2004, the duty to issue written litigation holds was clear. The seven plaintiffs who eventually issued written holds were found to have acted 166

167 negligently, while the six plaintiffs who failed to issue any written litigation hold were found grossly negligent and subject to a permissive adverse inference sanction. The court found all thirteen plaintiffs worthy of monetary sanctions since they conducted discovery in an ignorant and indifferent fashion, and awarded the defendants reasonable attorneys fees and costs associated with the motion. Finally, the court ordered two of the plaintiffs to search backup tapes for the relevant time period at their expense. Vagenos v. LDG Fin. Servs., LLC., 2009 WL (E.D.N.Y. Dec. 31, 2009). In this action brought under the Fair Debt Collection Practices Act, the defendant moved to prevent the plaintiff from offering at trial an alleged duplicate of the automated telephone message that served as the basis of the suit. The defendant asserted that the original message was destroyed with malicious intent and therefore was inadmissible. In opposition, the plaintiff maintained that the destruction of the original message was due to a change in cellular service providers and testified that the recording reflected the original. Despite finding no evidence of bad faith, the court determined that the plaintiff's duty to preserve evidence was breached. The court declined to preclude the evidence since it would be the "death knell" of the case, but it found an adverse inference sanction appropriate. In making this determination, the court noted that the destruction and the plaintiff attorney's failure to inform his client of the preservation duty were especially "egregious" and "highly troubling." Peschel v. City of Missoula, 2009 WL (D. Mont. Oct. 15, 2009). In this 1983 claim asserting unreasonable force and lack of probable cause, the plaintiff sought default judgment sanctions alleging the defendants spoliated video-recorded evidence. The defendants argued sanctions were not appropriate because the video's deletion was accidental. Citing the defendants' failure to have a backup system in place to ensure adequate preservation, the court determined the spoliation was the result of recklessness that warranted sanctions. In determining the appropriate sanction, the court found that an adverse inference was insufficient to cure the prejudice to the plaintiff. Although the court did not find an outright default judgment sanction appropriate, the court held that the defendants used unreasonable force. The court recognized this determination would effectively grant summary judgment on the issue of unreasonable force, "and, as such, [was] tantamount to a default judgment." Tango Transp., LLC v. Transp. Int'l Pool, Inc., 2009 WL (W.D. La. Oct. 8, 2009). In this contract dispute, the defendant sought monetary and adverse inference sanctions alleging that after months of repeated requests for documents, the plaintiff failed to ask employees to locate, preserve or produce documentation. The plaintiff placed a litigation hold on accounts of some custodians; however, in-house counsel for the plaintiff admitted a litigation hold was not placed on three key players until six months after the request. Citing the plaintiff's failure to issue litigation holds, the court determined sanctions were appropriate and awarded the defendant almost $13,000 in attorneys' fees and costs to serve as a deterrent against the plaintiff's future commission of similar discovery abuses. However, because the defendant failed to demonstrate the destroyed s would have supported its case, the court denied the adverse inference request. Green v. McClendon, 2009 WL (S.D.N.Y. Aug. 13, 2009). In this breach of contract dispute, the plaintiff sought sanctions alleging the defendants failed to preserve and produce electronically stored information (ESI). Finding the duty to preserve arose no later than the lawsuit's filing, the court determined the defendants' counsel failed to meet discovery obligations by neglecting to issue a litigation hold and properly search for responsive documents. Despite these failures, the court declined to issue an adverse inference instruction since there was no proof that the defendants' actions created an unfair evidentiary imbalance, noting the absence of evidence 167

168 that any relevant information was destroyed. However, the court held other sanctions were appropriate, including further discovery of ESI and an award of attorneys' fees and costs to be allocated among the defendants and counsel once the "respective blame-worthiness" was determined. Major Tours, Inc. v. Colorel, 2009 WL (D.N.J. Aug. 4, 2009). In this discrimination litigation, the plaintiffs sought production of the defendants' two litigation hold letters. The plaintiffs argued the letters were relevant to their examination of the defendants' document production and whether spoliation occurred. In opposition, the defendants claimed the plaintiffs failed to demonstrate evidence of spoliation and thus the letters were protected from discovery. Noting that litigation hold letters are in general privileged and not discoverable unless spoliation occurs, the court found a preliminary showing of spoliation existed in this case. The court inferred that relevant evidence was lost given the failure to timely ask a number of pertinent custodians to preserve evidence in addition to the significant time lapse that occurred between the duty to preserve and the issuance of the first litigation hold letter. Accordingly, the court granted the plaintiffs' production request, limiting it to those portions of the letters pertaining to preservation. Pinstripe, Inc. v. Manpower, Inc., 2009 WL (N.D. Okla. July 29, 2009). In this litigation, the plaintiff sought default judgment or adverse inference sanctions claiming the defendants failed to preserve and destroyed relevant documents, and also sought punitive monetary sanctions. The defendants' attorneys drafted a litigation hold, which the defendants failed to issue, and subsequently hired an outside vendor to recover deleted s after the defendants' internal information technology (IT) department failed to recover the documents. Finding the defendants' local counsel had little to do with discovery responses, and that the other firm drafted the litigation hold policy and made efforts to confirm client compliance, the court declined to sanction the attorneys. Addressing the defendants' conduct, the court held that while the defendants failed to meet preservation obligations by failing to issue the litigation hold, the conduct was not intentional and therefore did not warrant imposition of a default judgment or an adverse inference. However, the court determined some sanctions were appropriate and awarded future deposition costs, excluding attorneys' fees, to the plaintiff. Additionally, if the plaintiff discovered a specific, relevant had not been produced, it would be allowed to petition the court for further relief. Finally, the defendants were ordered to pay $2,500 to the Tulsa County Bar Association to fund a seminar on litigation holds and preservation of electronic data. Beard Research, Inc. v. Kates, 2009 WL (Del.Ch. May 29, 2009). In this tortious interference with business relations litigation, the plaintiffs sought spoliation sanctions claiming a computer was irretrievably altered after the defendants' preservation duty arose. Specifically, the plaintiffs alleged the repeated reformatting of a personal computer and the loss of a hard drive caused the destruction of relevant incriminating s and a presentation. The defendants argued there was no obligation to preserve one of the defendant's computers since there was no request for it. Finding this "mistaken view" let the defendants "off the hook too easily," the court determined the defendants were responsible for the evidence destruction. The court also found the defendants liable for the loss of an original hard drive. Based on these discovery abuses that led the plaintiffs and their IT expert on a "wasteful wild goose chase," the court granted an adverse inference sanction with regard to the presentation but declined to sanction the loss of s as the plaintiffs did not adequately prove their existence. The court also awarded attorneys' fees and expenses associated with the sanctions motion. Plunk v. Village of Elwood, IL, 2009 WL (N.D.Ill. May 20, 2009). In this civil rights action, both parties filed a "slew of pretrial motions." The defendants argued the court should bar the plaintiffs' expert from testifying unless discovery was re-opened. The plaintiffs requested an 168

169 examination of the defendants' computer system by their expert to determine if any deleted ESI was backed up. The plaintiffs also sought default judgment sanctions based on the defendants' destruction of an audio recording, failure to preserve data on computers and hard drives, and failure to back up relevant ESI. Addressing the defendants' motion, the court found the defendants' discovery failures and withdrawn expert statement that certain hard drives were not wiped clean necessitated testimony from the plaintiffs' expert, and thus allowed a short deposition from the plaintiffs' expert at cost to the defendants as a "fair discovery sanction for defendants' failure to follow the rules." Turning to the plaintiffs' motions, the court denied the examination request as expensive and futile. Regarding sanctions, the court rejected the defendants' arguments that evidence erasure was inadvertent and found the defendants breached their preservation obligations. The court determined an adverse inference sanction was appropriate, using the plaintiffs' expert's identification of chains suggesting relevant documents were destroyed accidentally or intentionally as partial justification. United States v. Maxxam, Inc., 2009 WL (N.D.Cal. Mar. 27, 2009). In this False Claims Act qui tam action, the plaintiffs sought sanctions alleging spoliation of an important document, known as the sustained yield plan, central to their case. The court first determined the defendants were responsible for preserving the evidence despite it being possessed by a third party and then determined that relevant evidence was not preserved. However, the court denied the plaintiffs' motion because they did not satisfy their burden of establishing the evidence was destroyed after the duty to preserve arose, despite being "troubled" by the fact that the defendants did not issue a litigation hold notice to the third party. Acorn v. County of Nassau, 2009 WL (E.D.N.Y. Mar. 9, 2009). In this civil rights litigation, the plaintiffs sought sanctions alleging the defendants failed to issue a timely litigation hold or conduct a search for responsive electronic documents. The defendants claimed it issued a "verbal" litigation hold and instructed key individuals to search for responsive documents despite lacking the technical resources to locate and access electronic documents. Finding the defendants had a duty to preserve evidence and were grossly negligent in failing to issue a proper litigation hold, the court granted motion costs and attorneys' fees. However, the court denied an adverse inference instruction citing the plaintiffs' failure to demonstrate the favorability of the lost evidence. Regarding the defendants' searching efforts, the court ordered the defendants to review its prior responses and supplement them if necessary, noting the plaintiffs had not provided any case law suggesting a "manual" search of electronic files was insufficient. Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater New York, 2009 WL (E.D.N.Y. Feb. 13, 2009). In this RICO suit, the defendants sought reconsideration of the court s previous order that directed the defendants to return or destroy the plaintiff s inadvertently produced privileged documents. Stating that it was closing and locking the door on future claims of privilege protection, the court determined the time for raising inadvertent disclosure arguments had passed. The defendant also asked the court to order the plaintiff to re-produce s that were previously produced without string headers. Siding with the defendants, the court was not satisfied with the plaintiff s explanation that header information was by default never created and thus not maintained. However, the court stayed the defendant s motion and ordered the parties to attempt to resolve the issue and provide a report to the court. Ellington Credit Fund, Ltd. v. Select Portfolio Servs., Inc., 2009 WL (S.D.N.Y. Feb. 3, 2009). In this breach of contract litigation, the plaintiffs moved to lift a pending discovery stay and sought a preservation order claiming systematic purges of the defendant s computer systems resulted in the destruction of relevant information. The defendant opposed the motion, arguing that a litigation hold was in place and no relevant files had been destroyed. Finding that the defendants 169

170 were fully aware of their preservation obligations, the court refused to lift the discovery stay and declined to issue a preservation order, noting the plaintiffs failed to propose terms, time frame or scope for any such order. Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL (D.Idaho Oct. 20, 2008). In this libel case, the plaintiff sought limited expedited discovery prior to the Fed.R.Civ.P. 26(f) conference. The plaintiff sought permission to serve a subpoena duces tecum on the third-party internet service provider, requiring it to produce identifying information for the Doe defendants and also sought to image the named defendants hard drives. The plaintiff argued the expedition was necessary to ascertain the Doe defendants names and to preserve relevant ESI. Granting the plaintiff s motion, the court noted that service providers typically retain user activity logs for a limited period of time and that the information was necessary for the litigation. Additionally, the court ordered the defendants to make any computer, portable, or detachable hard drive available to the plaintiff s computer forensic expert for imaging, citing the defendants previous behavior of service evasion, which gave rise to the assumption that it had little respect for the legal process or the requirement to preserve electronic data. In order to prevent prejudice to the defendants, the forensic expert was ordered to keep the images confidential and file them under seal. Almarri v. Gates, 2008 WL (D.S.C. Oct. 2, 2008). In this case, the plaintiff, an enemy combatant in military custody, requested the court impose a preservation order to preserve documents related to his detention and determine if spoliation occurred. The plaintiff claimed the government destroyed relevant evidence, did not have a preservation policy and that a preservation order was necessary to prevent further evidence destruction. The defendants claimed they had issued several preservation directives calling for the retention of evidence pertaining to the plaintiff and that the loss or destruction of certain records was inadvertent. Finding the defendants efforts to be in good faith, the court determined the plaintiff failed to demonstrate that there was significant risk relevant evidence would be destroyed absent a preservation order, thereby denying the plaintiff s motion. Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL (N.D.Cal. Sept. 19, 2008). In this sales contract litigation, the defendant/third-party plaintiff moved for adverse inference and monetary sanctions, claiming the third-party defendant intentionally destroyed and refused to produce relevant documents. The third-party defendant argued sanctions were inappropriate, arguing no duty to preserve existed as litigation was not anticipated prior to the date the suit was filed. Additionally, the third party defendant claimed that any document destruction occurred in accordance with the established document destruction policy. Frustrated with the lack of information on record, the court ordered the parties to file supplemental briefs addressing several specific issues, including: what evidence was destroyed, when it was destroyed, when litigation could have been reasonably anticipated and why the document destruction policy was not followed. Babaev v. Grossman, 2008 WL (E.D.N.Y. Sept. 8, 2008). In this litigation alleging fraudulent inducement of investments, the plaintiffs sought sanctions claiming the defendants engaged in spoliation of evidence and failed to produce other documents. The defendants argued that some documents were inadvertently corrupted and could not be produced, a lost computer was permissibly discarded as unusable prior to the anticipation of litigation and that bank records were not in their control. Dismissing the defendants arguments, the court determined the relevant computer evidence should have been preserved and was destroyed with a culpable state of mind. The court also held that the defendants possessed sufficient control over their bank records to produce them. For these reasons, the court imposed an adverse inference and awarded the plaintiffs $5,000 in costs and fees. 170

171 Keithley v. Homestore.com, Inc., 2008 WL (N.D.Cal. Aug. 12, 2008). In this patent infringement litigation, the plaintiffs sought monetary and evidentiary sanctions alleging spoliation of evidence. The defendants failure to issue a written document retention policy well after its preservation duty arose led the court to label the discovery misconduct among the most egregious this Court has seen. Additional factors justifying sanctions included the defendants numerous false and misleading representations made to the plaintiffs, in addition to the material misstatements made to the court. The court ordered the defendants to pay over $250,000 in fees and costs associated with prior and future motion practice and expert fees, deferring additional amounts until actual fees can be determined. Furthermore, the court ordered an adverse jury instruction against the defendants. Gippetti v. United Parcel Service, Inc., 2008 WL (N.D.Cal. Aug. 6, 2008). In this age discrimination litigation, the plaintiff sought sanctions for spoliation claiming the defendant destroyed relevant electronic documents, specifically tachographs, which records a vehicle s speed and length of time it is moving or stationary. The defendant responded that some of the requested tachographs were destroyed as part of the company s routine document retention policy, which due to the large volume of data, called for destruction of the records following 37 days. Additionally, the defendant argued it was not under a duty to preserve the records because they had no reason to believe that they had any bearing on the age discrimination claim. Agreeing with the defendant, the court refused to impose sanctions. Bright v. United Corp., 2008 WL (V.I. July 22, 2008). In this slip and fall case, the plaintiff appealed the trial court s grant of summary judgment in favor of the defendant. The trial court held that the plaintiff failed to provide any evidence that the defendant had constructive knowledge of the liquid spill which allegedly caused the plaintiff to fall. The plaintiff argued she was entitled to a spoliation inference based on the defendant store manager s decision to preserve the digital surveillance video of the actual fall but not the footage immediately prior to or subsequent to the fall. The defendant countered that the plaintiff was not entitled to a spoliation inference because the evidentiary destruction was a matter of routine practice and was devoid of fraudulent intent. After noting the store manager s, conscious and intentional choice not to review or retain the recorded footage, the court determined that the defendant both intentionally and fraudulently destroyed relevant evidence. The court also stated that the manager s failure to retain the footage shocks the conscience of the court and creates a presumption of fraud. Accordingly, the court granted a spoliation inference against the defendant for the purpose of summary judgment, but noted that whether a jury would actually draw a spoliation inference was a matter left for trial and remanded the case. Young v. Pleasant Valley Sch. Dist., 2008 WL (M.D.Pa. July 21, 2008). In this civil rights case, the plaintiffs requested production of stored on backup tapes. The defendants objected, arguing the request was unduly burdensome and unlikely to produce relevant material. In response to a previous court order, the defendant provided an estimate that the search s cost would be a minimum of $10,000. The court analyzed the factors laid out in Fed.R.Civ.P. 26(b)(2) and cited three factors that weighed against requiring production: (1) the burden and expense of the proposed discovery outweighed its likely benefit; (2) the needs of the case limit the usefulness of the information sought as it could be accessed in a more cost-efficient and less burdensome manner; and (3) the resources of the parties involved and the amount in controversy were relatively small. The court also rejected the plaintiffs offer to have their own expert search the backup tapes finding the request unduly burdensome, impractical and contrary to the spirit of the Federal Rules, noting that privacy concerns would undoubtedly require the defendant to closely supervise the plaintiff s search thus creating unnecessary costs. 171

172 Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL (N.D.Ohio July 7, 2008). In this breach of contract suit, the plaintiff sought summary judgment on its spoliation claim. The plaintiff alleged that the defendant engaged in spoliation of electronic evidence by failing to issue a litigation hold, thereby neglecting to retain relevant evidence as well as the destruction of relevant hard drive data. The plaintiff argued this failure resulted in the destruction of potentially relevant data, in addition to destruction of evidence contained on computer hard drives. The court found no direct evidence that the defendant deleted data with an intent to avoid disclosure to the plaintiff. Determining a genuine dispute of material fact to exist regarding intent with each aspect of the plaintiff s spoliation claim, the court denied the plaintiff s motion. Cunningham v. Standard Fire Ins. Co., 2008 WL (D.Colo. July 1, 2008). In this insurance contract dispute, the defendants moved for a protective order to prevent the plaintiff from inquiring into various topics contained in the plaintiff s Rule 30(b)(6) Notice of Deposition. The defendants argued that the plaintiff s notice of the topic regarding knowledge concerning the storage, preservation and backup of was irrelevant to the breach of contract claim. The plaintiff stated that he communicated with the defendants via about his claim, requested all relating to his claim, and yet received almost no . The court held that the plaintiff had not met his burden of establishing the topic s relevance after noting that the defendants asserted the plaintiff had not referenced any specific missing s. The court granted the defendants motion for a protective order in part and denied in part; the court granted the motion with respect to the topic of storage, preservation and backup. John B. v. Goetz, 2008 WL (Tenn. June 26, 2008). In this class action litigation, the defendants filed a petition for mandamus seeking relief from two discovery orders issued by the district court which ordered the state defendant to allow the plaintiffs computer expert to examine and forensically image and examine the computer systems of 50 key defendant custodians, including privately owned computers, in order to determine if information was removed, impaired or compromised, and to ensure preservation. The court granted the defendants petition in part, setting aside the portion of the order that required forensic imaging of hard drives and other devices that contain relevant electronically stored information. The court held the imaging of the media primarily for the purpose of preservation was an abuse of discretion, citing the fact that the record lacks any evidence that defendants have intentionally destroyed relevant ESI and noting the significant privacy and confidentiality concerns raised by the order. Canon U.S.A., Inc. v. S.A.M., Inc., 2008 WL (E.D.La. June 20, 2008). In this litigation involving an alleged breach of a dealer agreement between the plaintiff distributer and the defendant dealer, the plaintiff filed a motion to compel production and sought sanctions. The plaintiff sought paper and electronic documents from the defendant s server and argued the defendant s withholding of responsive documents and incomplete responses justified sanctions. The defendant argued that either the documents did not exist due to the destruction caused by Hurricanes Katrina and Rita, or that production would occur if the current searches yielded responsive information. Finding the defendant s responses to date to be insufficient as they appeared to have been conducted lackadaisically, the court ordered the defendant to bear the costs of employing a third-party computer forensic analyst to search its server and produce the requested information. The court also granted sanctions in part, awarding costs to the plaintiff incurred in issuing a third-party subpoena and in seeking insurance information. United States v. Kimoto, 2008 WL (S.D. Ill. May 8, 2008). In this post-conspiracy conviction hearing, the defendant filed a motion to dismiss alleging that the government either failed to provide, or destroyed, digital forensic evidence and relevant . Specifically, the 172

173 defendant claimed approximately were missing and further electronic evidence was intentionally withheld. The government argued that open file discovery was allowed from the beginning, making every scrap of electronic evidence available. Finding the defendant failed to prove the government acted in bad faith, failed to show the exculpatory value of the evidence was apparent, and failed to show the evidence could not have been obtained by other reasonably available means, the court denied the defendant s motion. Peterson v. Union Pacific R.R. Co., 2008 WL (C.D. Ill. May 1, 2008). In this wrongful death litigation, the plaintiffs filed a motion to compel additional discovery and sought sanctions. The plaintiffs sought additional depositions, alleging that the defendant concealed data or engaged in spoliation of three potential sources of electronic data. Determining that no discovery abuse existed, the court found that the plaintiffs failed to diligently pursue the requested information. Additionally, the court found that additional discovery was not needed at this stage of litigation. The court ordered the plaintiffs to show why their motion to compel was substantially justified in response to the defendant s request for fees associated with opposing the motion. In re Flash Memory Antitrust Litig., 2008 WL (N.D.Cal. April 22, 2008). In this antitrust litigation, the court issued an Order Regarding Preservation of Evidence and reminded the parties to comply with the duty to preserve all potentially relevant documents, data and tangible things in their possession, custody or control. The court identified documents, data and tangible things to encompass a broad list of electronically stored information, including writings, reports, calendars, telephone message logs, ledgers, bills, charts, films, and phonographic recordings. Additionally, the court ordered that each party must identify and notify non-parties of their duties to preserve potentially relevant information. Maxpower Corp. v. Abraham, 2008 WL (W.D.Wis. April 29, 2008). In this litigation against former employees, the plaintiffs sought a preliminary injunction requiring the defendants to return information allegedly deleted from the plaintiffs servers, in addition to spoliation sanctions. The plaintiffs computer forensics expert examined the defendants laptops, finding evidence of hard drive wiping software and of text strings referring to information about outdated products. The defendants argued the deletions of information from their laptops were done for maintenance purposes and complied with company policy. Finding the plaintiffs computer forensic evidence insufficient and ambiguous, the court denied the motion for preliminary injunctive relief. Additionally, the court denied the plaintiffs motion for sanctions finding insufficient evidence to support the argument that wiping the hard drive constituted deliberate spoliation. Treppel v. Biovail Corp., 2008 WL (S.D.N.Y. April 2, 2008). In this defamation suit involving numerous ongoing discovery conflicts, the plaintiff moved the court to compel production of additional electronic information and for sanctions for failure to preserve evidence. The plaintiff sought restoration and search of all backup tapes from two servers and one employee s laptop, arguing that the defendant s search was insufficient and possibly overlooked relevant data. The defendant argued its recovery and search of the December 2003 and March 2005 backups was sufficient as the events giving rise to the litigation occurred in the spring of 2002 and the complaint was filed in May For the most part, the court agreed with the defendant that the likelihood of finding additional relevant documents was exceedingly remote and therefore held that the burden outweighed the likely benefit. However, the court ordered restoration and search of one server for three specific days as well as two separate backups of another file server and server. Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., 2008 WL (N.D.Ohio Mar. 11, 2008). In this suit alleging breach of a settlement agreement, the plaintiff sought to amend the complaint to include a claim for spoliation following two years of discovery. 173

174 The plaintiff alleged the defendant knowingly destroyed relevant evidence specifically the defendant replaced employees hard drives days before the plaintiff could make forensic images of those drives. The defendant argued that a spoliation claim would be futile and cause undue prejudice. Applying state law for spoliation and appropriate sanctions, the court granted the plaintiff s motion and allowed the plaintiff to add a claim of spoliation. Orrell v. Motorcarparts of America, Inc., 2007 WL (W.D.N.C. Dec. 5, 2007). In this sexual harassment suit, the plaintiff sought damages alleging sexual harassment, gender discrimination, hostile work environment and wrongful discharge based on receipt of inappropriate s from co-workers and customers. Alleging improper destruction of evidence and incomplete compliance with discovery obligations, the defendant filed a motion to compel seeking production of the plaintiff s home and work computers and an order prohibiting further destruction of evidence. The plaintiff argued that complying fully with all of the defendant s requests would create an undue burden. Agreeing with the defendant, the court determined that the burden to preserve evidence was not eliminated due to the alleged crashing of the plaintiff s home computer. The court found the defendant s requests to be reasonably calculated to lead to the discovery of admissible evidence, and ordered the plaintiff to produce her home computer for forensic examination. The court also ordered the plaintiff not to further destroy relevant evidence. Additionally, the court warned the plaintiff that failure to comply may result in sanctions including dismissal of the case with prejudice and payment of the defendant s attorney s fees. Smith v. Café Asia, 2007 WL (D.D.C. Oct. 2, 2007). In this suit alleging sexual discrimination, assault and battery, the defendant, a former employer of the plaintiff, sought images stored on the plaintiff s cell phone to prove the plaintiff invited the treatment that incited the suit. The case was referred to United States Magistrate Judge Facciola for resolution. Judge Facciola stated that Fed. R. Civ. P. 26 is not an all-or-nothing proposition and the probative value of the sought-after materials must outweigh their prejudice. After conducting a Rule 26 and Federal Rule of Evidence 412 analysis, Judge Facciola ordered the plaintiff to preserve the stored images. Additionally, Judge Facciola allowed the defendant to designate one attorney to inspect the stored images in order to provide the trial judge with a fully informed debate regarding the images admissibility. Escobar v. City of Houston, 2007 WL (S.D.Tex. Sept. 29, 2007). In this wrongful death proceeding, the plaintiff sought an adverse inference sanction for the defendant s alleged destruction of electronic communications following notice of the claim. The defendant argued that the officer involved in the shooting death of the 14 year-old plaintiff did not have an address and therefore the likelihood of finding any relevant information was nonexistent. The defendant also claimed the 90 day automatic deletion policy would have deleted anything relevant prior to the two years it took the plaintiff to seek electronic communications. Citing Fed.R.Civ.P. 37(f), the court denied the motion, finding no evidence that relevant s were destroyed in bad faith in the routine operation of the police department s computer system. Benton v. Dlorah, Inc., 2007 WL (D.Kan. August 1, 2007). In this case alleging employment discrimination on the basis of gender, the defendants motioned the court to compel the plaintiff to produce the hard drive of her personal home computer and further requested an order prohibiting the plaintiff from destroying and other relevant evidence. In support of these requests, the defendants claim that the plaintiff had only produced a handful of for a time period spanning several months. The plaintiff argued that she already produced all relevant materials and refused to produce the computer for investigation by a computer forensic expert. The court denied the motion and declined to assume the plaintiff was lying or had been discredited in her discovery responses. 174

175 Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 2007 WL (E.D.Pa. July 20, 2007). In a suit alleging copyright infringement, inter alia, the plaintiff motioned the court to sanction the defendant for spoliation of evidence. Prior, the plaintiff sued a party that was represented by the defendant. In defending that suit, the defendant viewed archived screen shots of the plaintiff s former website, printing copies of each archived screenshot viewed and using the images during the course of the underlying litigation. The defendant did not actively save electronic copies any of the screenshots viewed. In the instant suit, the plaintiff claimed the defendant hacked the archival website to gain access to these screen shots and had a duty to preserve the information they viewed and printed. The plaintiff argued that failure to preserve the screen shots that were temporarily stored in the cache files but not downloaded onto the defendant s hard drives, entitled it to a spoliation inference at trial. The court rejected the plaintiff s argument and accepted the defendant s summary judgment motion on the issue, holding it impractical for the defendant to have had the duty to preserve such evidence. De Espana v. American Bureau of Shipping, 2007 WL (S.D.N.Y. June 6, 2007). In a suit regarding the casualty of a vessel off the coast of Spain, the defendant sought sanctions for the plaintiff s alleged spoliation of and electronic documents. The court set out a three factor test to determine if sanctions were warranted, which stated that the party seeking sanctions for spoliation must demonstrate: (1) that the opposing party had an obligation to preserve the evidence; (2) it acted culpably in destroying or failing to preserve the evidence; and (3) the evidence would have been relevant to the case, in that a reasonable jury could find that the evidence would have been favorable to the opposing party. The court held that the plaintiff had a duty to preserve relevant electronic information upon filing suit and acted negligently, not willfully, in failing to timely issue a litigation hold. The court also found that the defendant did not meet its burden of demonstrating that the missing would have contained relevant information unfavorable to the plaintiff or that it was prejudiced without those records. As such, the court refused to issue an adverse inference instruction but did find that the defendant was entitled to reimbursement of reasonable expenses incurred in bringing the motion. Columbia Pictures Industries v. Justin Bunnell, No FMC (JCx) (C.D.Cal. May 29, 2007). In a suit alleging copyright infringement, specifically claiming the defendant enables, encourages, and induces profit from online piracy, the plaintiff sought preservation and production of the IP addresses of users of the defendant s Web site and the dates and times of the users requests. The defendant argued that this server log data was not stored on its Web site or in any form from which it could be retrieved. Instead, this data was temporarily stored in random access memory (RAM) on servers located in the Netherlands and routed through a contracted server. The defendant also argued the data did not constitute ESI, was not within their possession, custody or control, that preservation and production was tantamount to requiring the creation of new data, and such an order would be unduly burdensome. Additionally, the defendant argued that the preservation and production of their Web site user IP addresses raised privacy issues. Disagreeing with the defendant and ordering preservation and production of the data stored in RAM, the court found that the data was extremely relevant, did constitute ESI, was within the defendant s possession and control, and the IP addresses should be masked to protect the privacy of the Web site users. The court also rejected defendant s arguments as to violation of the Stored Communications and Wiretap Acts, holding that compliance with this order provides a complete defense to any civil or criminal action predicated on either statute. Lastly, the court refused to sanction the defendant or require them to pay plaintiff s attorney s fees and costs. Teague v. Target Corp., 2007 WL (W.D.N.C. Apr. 4, 2007). In a gender discrimination suit, the defendant brought a motion for sanctions against the plaintiff for spoliation of evidence, 175

176 specifically seeking dismissal of the suit because the plaintiff disposed of her home computer after filing an EEOC claim against the defendant. The plaintiff s home computer contained evidence relating to her lawsuit against the defendant. The plaintiff claimed that she disposed of her computer after the hard drive crashed and was unable to be repaired by her brother. The court held that sanctions were appropriate since the computer contained evidence directly related to the defendant s company. The court determined that she disposed of the computer with a culpable state of mind and that an adverse inference jury instruction at trial was proper. Univ. of Pittsburgh v. Townsend, 2007 WL (E.D. Tenn. Mar. 30, 2007). In a case where the plaintiff alleged that the defendants misappropriated the plaintiff s rights to medical scanning technology, the defendants moved the court to sanction the plaintiff for spoliation of evidence by excluding the testimony of the plaintiff s proposed experts. The defendants alleged that the experts and plaintiff s counsel destroyed copies of s and draft expert reports, to which they were entitled. The experts stated that they did not retain from the plaintiff s counsel because they were instructed not to do so by the plaintiff s counsel. The experts stated that they did not have the prior draft expert reports because they only worked from one copy. The court rejected the defendants argument and denied the request for sanctions. It ruled that although a draft an expert report may be discoverable under the Federal Rules of Civil Procedure, an expert need not preserve the drafts until the need to retain exists. Here, the experts and the plaintiff s counsel were not under an obligation to preserve the reports until the defendants subpoenaed records from the experts. Since the draft reports were destroyed prior to the creation of any obligation to retain, the court held that the destruction of the draft reports was not done intentionally, fraudulently, and with a desire to suppress the truth, and therefore, [was] not sanctionable. However, the court did hold that it was improper for the plaintiff s counsel to have instructed or otherwise suggested to the experts that all s be destroyed, as they were the subject of multiple discovery requests. The plaintiff s counsel apologized for the error, and the court did not issue sanctions. Padgett v. City of Monte Sereno, 2007 WL (N.D. Cal. Mar. 20, 2007). In a case alleging civil rights violations and infliction of emotional distress, the plaintiff sought to explore claims about the authorship of a harassing letter he received from a city employee. The court initially denied the plaintiff s request to compel inspection of the city s computers but ordered the defendant to preserve everything. The city assured the court it would abide by the preservation order. However, after a subsequent court order for production of three of its employee s hard drives, the defendant acknowledged it had destroyed one of them. The defendant explained that the hard drive in question had been inadvertently discarded after the user s laptop crashed. However, at a hearing before the court the city indicated that it found the laptop, with no explanation other than that it appeared. Unsatisfied with the city s explanation, the plaintiff moved for terminating sanctions, monetary sanctions, and default judgment. In turn, the defendant moved for clarification of the court s previous order to allow inspection or, in the alternative, for a protective order. The court found the defendant had discarded the laptop with notice of its potential relevance, causing delay and additional expense to the plaintiff. While reserving judgment as to whether the defendant s actions warranted terminating sanctions, the court ordered monetary sanctions against the defendant in the amount of the plaintiff s attorney fees and traveling costs associated with bringing the motion. It also ordered the defendant to pay the plaintiff s expert s fees and to bear the cost of a court-appointed special master. The court declined to consider the defendant s motion for clarification, directing the defendant to seek further direction from the special master. Cache La Poudre Feeds, LLC v. Land O' Lakes, Inc., 2007 WL (D. Colo. Mar. 2, 2007). In a trademark infringement claim, the plaintiff sought relief for alleged discovery violations. Specifically, the defendant produced various electronic documents and issued a litigation hold 176

177 during the suit, but the plaintiff claimed that the defendant s litigation hold came too late in the litigation process and resulted in systematic spoliation. The plaintiff first sent letters to the defendant regarding the trademark infringement in 2002 but did not initiate suit until The defendant issued its litigation hold once the lawsuit commenced. Furthermore, the plaintiff claimed the defendant failed to preserve hard drives of former employees. The defendant admitted that it wiped the hard drives of several employees who left the company during this litigation according to company policy. The plaintiff not only sought production of documents but spoliation sanctions. The defendant argued that its litigation hold was timely applied when litigation was reasonably foreseeable and that any spoliation of evidence was not purposeful conduct. Refusing to order spoliation sanctions, the court found that the defendant s litigation hold was properly issued upon commencement of the lawsuit and that the plaintiff s letters to the defendant before the suit was actually filed did not give the defendant sufficient notice that a suit was likely to occur. The court determined, however, that the defendant improperly destroyed evidence contained on former employee hard drives because this evidence was destroyed after suit was initiated. As such, the court found that the plaintiff was forced to incur additional expense in litigating the matter and ordered $5,000 in monetary sanctions. School-Link Techs., Inc. v. Applied Res., Inc., 2007 WL (D. Kan. Feb. 28, 2007). In a contract dispute, the plaintiff sought sanctions against the defendant for its failure to implement a litigation hold to preserve relevant documents in the custody of one of its key employees and for its failure to adequately search for and gather responsive discovery documents. The key employee testified that she was never contacted by the defendant to search for relevant documents but that she searched her own computers under her own accord. The defendant eventually produced the employee s files from her computer and they were merely duplicative of already produced documents. The court, despite finding that the defendant breached its duty to preserve evidence, refused to order sanctions, as there was no showing that the breach caused relevant documents and information to be destroyed. With regard to the plaintiff s inadequate search claims, the court ordered the defendant to assure the plaintiff that all employees documents and computer files had been produced. The court also ordered the defendant to produce an identical copy of the memory stick used to save the key employee s documents to ensure that all information had actually been produced. Thompson v. Jiffy Lube Int l, Inc., 2007 WL (D. Kan. Feb. 22, 2007). In this class action suit, the defendant filed for sanctions against the plaintiffs for spoliation of important documents and information. The plaintiffs, under an order to produce witness names, addresses and phone numbers, claimed that the information was lost when the hard drive possessed by its counsel crashed and the information was not backed up for retrieval. The plaintiffs argued that it did not intentionally or negligently destroy any witness information and that they attempted to salvage the data stored on the hard drive but concluded that reconstructing the data would be too time consuming and burdensome. The defendant argued that the plaintiffs had a duty to preserve the information in a manner that would have prevented loss and, at a minimum, preserved the data in a backup system. The court declined to issue sanctions against the plaintiffs stating that the plaintiffs failure to utilize a backup system for counsel s computer is troubling but sanctions were inappropriate because the issues for trial had not yet been established. The court noted that the issue of spoliation may be revisited by motion after the issues in the case are better defined. The court did, however, allow the defendant to issue written deposition questions to plaintiffs counsel to determine the extent of the lost data. Floeter v. City of Orlando, 2007 WL (M.D. Fla. Feb. 9, 2007). In case involving a sexual harassment claim, inter alia, the plaintiff filed a motion for sanctions against the defendant for 177

178 destruction of evidence. The plaintiff requested various documents from the defendant; however, the hard drives in the defendant s possession had been previously replaced and sold as new computers were purchased for employees. The backup tapes containing the relevant s were also overwritten per department policy. The plaintiff argued in favor of sanctions because the defendant ignored its duty to preserve data when litigation was reasonably foreseeable. The defendant argued that its duty to preserve or hard drive data did not occur until the discovery requests were served and any prior destruction was done in accordance with good faith procedures. The magistrate ruled that sanctions were not appropriate against the defendant. It held that the duty to preserve the hard drives may have arisen when the complaint was served but failure to follow the duty was immaterial since the missing documents were not crucial to the plaintiff s case. The documents were not crucial because other evidence existed which demonstrated the same information as would have been found in the deleted s. Furthermore, the court determined that the destruction by the defendant was not performed in bad faith because of the pre-existing procedures to overwrite data on its backup tapes and hard drives. In re NTL, Inc. Sec. Litig., 2007 WL (S.D.N.Y. Jan. 30, 2007). In a class action claim involving federal securities law violations, the plaintiffs moved for sanctions against the defendant, alleging that the defendant deliberately destroyed and allowed spoliation of s and other electronically stored information. The defendant company fell into bankruptcy before this suit and emerged from bankruptcy with two distinct subsidiaries conducting business on behalf of the defendant. After bankruptcy, many electronically stored documents and s were lost or destroyed when the company emerged split into the two new companies. The plaintiffs argued that one of the new entities had a duty to preserve and produce s created and saved during the previous company s existence. The defendant argued that it had no duty to preserve the information because the possibility of litigation could not have been foreseen prior to the bankruptcy of its parent company. It further argued that it had no responsibility to preserve any of its electronic documents sent from the parent company prior to the current suit. The court concluded that defendant s duty to preserve actually started when litigation was foreseen by former company even though most of the documents and ESI ended up in the physical possession of new companies. The court found that the defendant s failure to preserve relevant documents and ESI was grossly negligent and that it reasonably should have known to preserve all documents from the parent company and issue a proper litigation hold that spanned across the old company and the new companies. The court granted the motion for an adverse inference instruction and ordered the defendant to pay attorneys fees and costs. Phillips v. Netblue, Inc., 2007 WL (N.D. Cal. Jan. 22, 2007). In a dispute involving spam messages sent to the plaintiff through , the defendants brought a motion for sanctions against the plaintiff for not preserving the s that were subject to the suit. In producing evidence to the defendants, the plaintiff did not preserve the hyperlinks contained in the spam e- mail. The hyperlinks in the spam tell an recipient s computer what web address to contact in order to download and display certain images. The defendants argued the links initially received in the spam messages were no longer active and that the plaintiff had a duty to preserve not only the s but the images as displayed by the links attached to the . The plaintiff argued that it was under no duty to memorialize the s as displayed to a user would, but only that they preserve the s as sent by the sender. The court denied sanctions against the plaintiff stating that the absurdity of [the defendants ] argument is patent. The defendants argument is not based on the plaintiff s failure to preserve evidence but upon the plaintiff s failure to gather evidence. The court noted that a plaintiff does not have a legal duty to gather evidence for a defendant. The defendants request was for information that is beyond what is contained in the 178

179 actual . The plaintiff fulfilled its discovery duties by disclosing the as seen by the plaintiff and did not have control or custody of the requested information. May v. Pilot Travel Centers LLC, 2006 WL (S.D. Ohio Dec. 28, 2006). In a wrongful termination case, the plaintiff moved for spoliation sanctions against the defendant for failing to produce and preserve relevant evidence. The defendant failed to produce electronic documents such as , invoices, and payroll records which were central to the plaintiff s case. The defendant claimed not to have the information but eventually produced some, but not all, of the requested records after the motion for sanctions was filed. The defendant argued that the plaintiff provided no proof that it destroyed evidence and the sanctions should be denied. The defendant also argued that it did not have a duty to supplement discovery disclosures because the plaintiff did not request supplementation during the discovery period. Not satisfied with the defendant s arguments, the court concluded that sanctions were appropriate. The defendant s production of some of the records shortly after the motion was filed was evidence of the defendant s bad faith. Additionally, the burden to prove no destruction occurred was on the defendant since it was in control of the evidence at issue and the burden should not shift to plaintiff. Anadarko Petroleum Corp. v. Davis, 2006 WL (S.D. Tex. Dec. 28, 2006). In a misappropriation of trade secrets case, the plaintiff alleged the defendant stole confidential and proprietary electronic information when he left the plaintiff s company to work for a competitor. The defendant admitted to taking information from the company on his personal laptop. When the plaintiff sent him a preservation letter asking not to destroy the information, the defendant, under advice from his attorney, transferred all of the data on his laptop onto a USB drive and deleted all of the plaintiff s data from his hard drive. The plaintiff believed that not all information was transferred and some relevant information was deleted. A computer forensics investigation of the defendant s computer showed that he only produced around 1GB of information on the USB drive when around 7GB of information was downloaded. The plaintiff asked the court for sanctions based on spoliation of evidence. It argued the defendant deliberately destroyed evidence when he was under a preservation obligation. The defendant argued he only produced less electronic evidence on the USB drive because he deleted any duplicate documents found during the transfer and only did so for the convenience of the plaintiff. Nevertheless, the defendant agreed to a forensic examination of his computers to discover if any relevant evidence was deleted. The court ruled there was not enough evidence to demonstrate the defendant destroyed records in bad faith. It noted that there was no bad faith destruction because the files were copied to a USB drive to be given to the plaintiff and not completely destroyed as in most spoliation sanction cases. Despite this ruling, the court ordered the plaintiff to supplement its motion for sanctions once the forensic investigation is complete. If the investigation reveals that the defendant failed to copy relevant documents to the USB drive for the plaintiff s review, then sanctions may be appropriate. Malletier v. Dooney & Bourke, Inc., 2006 WL (S.D.N.Y. Dec. 22, 2006). In this trademark infringement case, the plaintiff moved for discovery sanctions against the defendant, claiming that the defendant failed to conduct complete or timely searches for electronic documents, failed to issue a proper litigation hold, and failed to preserve chat room discussions taking place on the defendant s website. Denying the plaintiff s motion, the court found no discovery misconduct. Instead, the court questioned the plaintiff s delay in raising these discovery issues and stated that the plaintiff failed to demonstrate that the defendant s discovery production was materially incomplete. The court noted an ambiguity as to whether some employees accounts had been searched and ordered the defendant to confirm this in writing. The court also found that the defendant s failure to instruct certain employees to preserve documents after the lawsuit was either imminent or already pending did not result in any relevant documents being destroyed. Lastly, the 179

180 court held that chat room discussions on the defendant s website would not fall under the same discovery requirements as , and the defendant could not be sanctioned for failure to preserve the discussions. PML N. Am., LLC. v. Hartford Underwriters Ins. Co., 2006 WL (E.D. Mich. Dec. 20, 2006). In this fraud case, the plaintiff filed for default judgment sanctions against one of the defendants for failure to preserve electronic evidence and bad faith destruction of documents. The defendant failed to produce a USB drive and backup servers and produced a badly damaged hard drive from a vital computer in the case. The damaged hard drive showed evidence that the computer casing had been opened and the hard drive removed with a screwdriver. A computer forensic expert testified that the computer had been tampered with and that because of the tampering no electronic data could be harvested from the key piece of evidence. The plaintiff argued that such failure to produce the information and the badly damaged hard drive was evident of willful, bad faith spoliation. The defendant did not produce any logical explanation for the damaged computer or the lack of production of the thumb drive and backup servers. The court agreed with the plaintiff s argument and found evidence that the hard drive belonging to the defendant was tampered with before production. The court held that the hard drive was proof of the defendant s willful and intentional destruction of evidence and that default judgment was proper since all parties were substantially prejudiced. Furthermore, the court ordered the defendant to pay all attorney s fees and costs. The Bedford, LLC v. Safeco Ins. Co. of Am., 2006 WL (Wash. App. Div. 1 Dec. 11, 2006). In a breach of contract case, the plaintiff appealed a jury decision in favor of the defendant based on the defendant s failure to disclose an attachment to an before trial. The defendant s attachment to the was only available on a backup tape which was eventually recovered and produced shortly before the trial s end. The was sent from the defendant s expert and the attachment was a draft of his expert report. The plaintiff argued it was significantly prejudiced in its claim because of the discovery delay. The defendant argued the attachment was only a draft and it was under no obligation to produce mere drafts of expert reports which were ultimately submitted to the plaintiff. The court held that there is no duty to retain all experts drafts which are eventually overwritten and submitted in a separate final form. The court also held the plaintiff was not prejudiced by the surprise draft report before the trial ended because it had a chance to cross-examine the author of the report. Wachtel v. Health Net, Inc., 2006 WL (D.N.J. Dec. 6, 2006). In a class action suit, the plaintiffs sought sanctions, including default judgment, against the defendant for failure to retain, search and produce and other electronic documents. Several discovery orders had been issued over the last five years compelling the defendant to produce electronic records, with which the defendant failed to comply. Eventually, approximately 20,000 previously undisclosed documents were produced by the defendant after several years of discovery orders. The defendant also failed to search backup tapes for and failed to properly preserve any other during litigation. The defendant had an automated deletion program but failed to alter the program or search for any deleted on backup tapes until three years into litigation. The court held that it would not issue a default judgment as a sanction despite the defendant s illicit bad faith in discovery. However, the court allowed monetary penalties, adverse inferences, and payment of plaintiff s costs as sanctions. JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2006 WL (S.D. Ohio Nov. 14, 2006). In a claim under the UCC, the plaintiff filed a motion for sanctions and a motion to compel discovery. The defendant failed to properly answer an interrogatory question that directly related to its motion for of dismissal based on the defendant s lack of jurisdiction. The defendant claimed the plaintiff 180

181 lacked jurisdiction and the plaintiff asked for information in discovery to support that contention. Throughout the litigation the defendant failed to answer the interrogatory and failed to give information regarding its research of the issue during multiple depositions. The plaintiff argued that it was only in search of information from the defendant s electronic database of client names to determine their residency and whether the clients were in fact within the plaintiff s jurisdiction. The defendant asserted that it lacked knowledge of the information and could not produce the evidence. It also claimed that it would research the issue and during a subsequent deposition, a key defense witness stated he forgot the research results and would supplement the plaintiff later. However, he never did. The court ordered the defendant to produce their electronic database of clients to the plaintiff and noted that the defendant has engaged in exactly the type of gamesmanship which is expressly prohibited by the Federal Rules of Civil Procedure and universally condemned by the applicable case law. The court also ordered the defendant to pay the plaintiff s attorney s fees and costs. In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL (E.D. Mo. Nov. 13, 2006). In this multi-district litigation regarding two prescription drugs, the parties agreed to a document management plan which the court incorporated into its order. The parties established that the plaintiffs would preserve the hard drives of computers used by the plaintiffs and the plaintiffs decedents, and such hard drives would be imaged and analyzed pursuant to an agreed forensic examination protocol. The parties also decided the defendants would not be required to restore any of their backup tapes at this time, and instead, responsive electronically stored information would be collected from the defendants' active IT environment. They must preserve the thirty-five backup tapes set aside for this litigation, but may otherwise resume backup tape recycling. The plaintiffs deferred the production format decision to the defendants and allowed them to produce data in any format that is generally searchable and manageable. The parties were unable to agree on how costs should be apportioned, the scope of discovery into electronic databases, and who should perform the forensic examination of the computer hard drives. The court determined it would decide these issues after more briefing by the parties. Optowave Co. v. Nikitin, 2006 WL (M.D. Fla. Nov. 7, 2006). In a contract dispute, the plaintiff alleges that the defendant deleted relevant s with bad faith. The s were saved on the hard drives of several workplace computers and contained evidence relevant to the contract dispute. After litigation started the defendant reformatted the company server using an outside consultant who erased several relevant s. Evidence also showed that several s in a key employees sent box were deleted. The court determined that the loss of evidence could have only come about through the intentional acts of the defendant. The court ordered adverse jury instructions at trial as a sanction for intentional spoliation of evidence. In Re Quintas Corp. v. Avaya, 353 B.R. 77 (Bankr. D. Del. 2006). In a bankruptcy petition, the trustee of the debtor s estate claimed that the purchaser of the debtor s assets deliberately deleted the debtor s general ledger which would show the debtor s unpaid liabilities. The evidence showed that the defendant deleted the electronic records on its computer in order to make more storage space on its server. By law, the defendant was only allowed to delete the records after 7 years. The court found that such deliberate deletion of records greatly prejudiced the creditors from collecting their debt from the estate and the only sanction capable of repairing the harm done by the defendant would be default judgment since the destroyed ledgers went directly to the heart of the case. In Re Napster, Inc. Copyright Litigation, 2006 WL (N.D. Cal. Oct. 25, 2006). In a copyright infringement matter, the plaintiffs alleged a Napster investor willfully deleted relevant e- mail so the court should issue an adverse inference instruction and default judgment on some of 181

182 the claims. The investor argued they did not have a duty to preserve the s in question because they were not a named party to any Napster litigation at the time nor did they reasonably expect to be a part of any litigation related to Napster. The court disagreed and determined that as investors, the president of the company knew prior to the commencement of this litigation, they could be named as a party in the suit and be required to produce documents. Although the court did not find the investor willfully destroyed , it determined that it was grossly deficient in its attempt to preserve any evidence. Default judgment was not ordered; however, adverse inferences and monetary sanctions were awarded. Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL (E.D. Mich. Sept. 28, 2006). The plaintiff sought sanctions against the defendant for bad faith destruction of relevant documents and s. The defendant in this case was a competitor of the plaintiff in the sporting goods business. The defendant hired a former employee of the plaintiff after he voluntarily ended his employment with the plaintiff. When the employee left the company, he forwarded several confidential documents from the plaintiff s company account directly to his personal Yahoo! account. A computer forensics expert determined the employee opened the documents on his home computer, and several of the confidential documents were also found on a computer issued to the employee from his new employer. Upon the filing of the plaintiff s lawsuit, the employee cancelled his Yahoo! account, thereby causing all s stored on the account to be destroyed and unrecoverable. The plaintiff motioned the court to issue sanctions in the form of dismissal for bad faith destruction of key documents after litigation commenced. The defendant argued no knowledge of the stolen trade secrets from the plaintiff and alleged the employee transferred and deleted the files on his own. The court found the employee destroyed wrongfully obtained records when he cancelled his personal account with Yahoo!. The court did not find enough evidence to prove the defendant willfully and in bad faith supervised or instructed the destruction of the trade secrets. However, the court did find the defendant negligent in its failure to preserve relevant evidence from its employee. The negligence by the defendant did not warrant a dismissal of the case as the plaintiff urged, but the court ruled a negative inference may be allowed at trial because it should have done more to detect and preserve relevant data under [the employee s] control. Ball v. Versar, Inc., 2005 WL (S.D. Ind. Sept. 23, 2005). In a contract dispute involving a trust fund, the defendant filed several motions to compel the of the two plaintiff trustees. One trustee preserved all relevant , but one trustee deleted some after litigation commenced. The trustee s relevant to the litigation was stored on his personal home computer and his work-issued computer. The defendant argues that the trustee s home and workowned computers should be produced and the plaintiff sanctioned for the deliberate spoliation of e- mail evidence. The plaintiff argues the trustee did not destroy the in bad faith because he did not know he was supposed to preserve the . The court ruled the trustee s deletion of the was not justifiable and permitted the defendant to examine all computers used in the trustee s home for an eight-year period and of all work-owned computers used by him during the same time. Although the court declined to issue any severe sanctions, it did awards costs to the defendant. Powers v. Thomas M. Cooley Law School, 2006 WL (W.D. Mich. Sept. 21, 2006). In a claim brought by a law student under a state Persons With Disability Act, the plaintiff sought to examine the defendant s computer system with her computer forensics expert. The plaintiff claimed her poor scores on final tests were attributed to faulty software provided by the law school to assist the plaintiff with her vision disability while taking tests. The plaintiff originally sought the production of several work orders from the law school relating to the software but the school changed 182

183 computer systems and during the switch some documents were deemed unrecoverable. The plaintiff argued the defendant used the system changeover as an excuse not to produce relevant documents. The defendant argued it already produced every work order they were able to recover and the other work orders could not be retrieved from the old computer system. The court found for the defendant, stating [t]his court is therefore loathe to sanction intrusive examination of an opponent's computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Crandall v. The City and County of Denver, 2006 WL (D.Colo. Sept. 19, 2006). In a case involving exposure to harmful chemicals, the plaintiffs sought sanctions against the defendant for deleting before and during the litigation. Specifically, the defendant s protocol automatically deleted s every seven days. The defendant did not change the server s protocol until six months after litigation started, resulting in the deletion of many relevant s. However, the defendant purchased data recovery software and recovered 91,000 deleted s. The plaintiffs still alleged several relevant s were destroyed which could never be recovered and the missing s severely prejudiced their case. The defendant argued no relevant s were destroyed and it took substantial steps to recover any deleted s. The plaintiffs urged the court to create a presumption in favor of spoliation whenever a moving party can prove that records that might have contained relevant evidence have been destroyed. The court declined to create a legal presumption in favor of spoliation. Instead, it re-opened discovery and allowed the plaintiffs to depose two persons having knowledge of the system. It also allowed the plaintiffs to have a computer expert examine the defendant s system. The court found that because the plaintiffs were not prejudiced by loss of the alleged data, sanctions in the form of adverse inferences and fees and costs would not be assessed on the defendant. The court stated the defendant may file another motion if new evidence was discovered. United Medical Supply Co. v. United States, 73 Fed.Cl. 35 (Fed. Cl. 2006). The Federal Claims Court reviewed a motion requesting an order commanding a government entity to preserve documents. The plaintiff claimed an order was necessary to preserve documents since evidence revealed that the government allowed several boxes of relevant documents stored in warehouses to be destroyed. The court noted that it need not issue a preservation order to prevent spoliation since most parties understand the obligation to preserve relevant evidence. However, the court found that the risk of future document destruction was high and steps to prevent the possible destruction would not be overly broad or burdensome on the government, therefore, granting the preservation order. Although the destruction of documents involved paper documents stored in a warehouse, the court extended the preservation order to include all electronic documents, including computer hard drives and servers. King Lincoln Bronzeville Neighborhood Assoc. v. Blackwell, 439 F.Supp.2d 524 (E.D. Va. 2006). In an action to prevent voting discrimination, the plaintiff brought sued to determine if voting in the state of Ohio was racially discriminated against during the 2004 election. The plaintiff claims a disproportionate number of black voting districts in Ohio were provided with a smaller number of balloting machines compared to the more predominately white districts during the 2004 presidential elections. The plaintiff seeks fairer voting procedures during the upcoming 2008 national elections. The court ordered that all 88 county election boards preserve all ballots from the 2004 election in any form they are contained, including electronic form. The court noted that it has the power to issue sanctions in the form of contempt and otherwise for any third-party that fails to preserve any ballots in their paper or electronic form. Arista Records v. Tschirhart, 2006 WL (W.D. Tex. Aug. 23, 2006). In a copyright infringement case involving the illegal downloading of music from the internet, the plaintiff motioned 183

184 the court to award default judgment against the defendant for deletion of key computer records. The defendant was required to produce her computer for inspection two times to determine if songs had illegally been downloaded from the internet. However, once the defendant eventually produced her computer, a computer forensics expert determined that wiping software was run shortly before and after production was ordered. The defendant argued that she merely ran a defragmentation program which comes installed on most computers and is run automatically. However, the plaintiff argues that the defragmentation was performed at key moments in the litigation and was not indicative of a program running a monthly or weekly scan. The court held that the timeliness of the data deletion was consistent with intent to destroy. The defendant argued sanctions should be sufficient to prevent the destruction of any more evidence in the case. However, the court found no other relevant evidence existed that the defendant could destroy. Therefore, the court held that only an order for default judgment would be fair since key evidence was missing and without it, only piecemeal evidence would remain which greatly prejudiced the plaintiff in presenting its case. United States v. Tamez, 2006 WL (S.D.N.Y. Oct. 5, 2006). A judge s sentence for a defendant convicted of embezzlement, inter alia, was increased by two levels for obstruction of justice -- namely the defendant s deliberate deletion of from a workplace-issued laptop. A computer forensics expert determined the defendant, a high-ranking DEA official, deleted incriminating s and files from his government computer shortly after the DEA informed him that he was placed on administrative leave for suspicion of embezzlement. The defendant filed a motion asking the court to set aside the upward departure from the sentencing guidelines because the s were not deleted deliberately. He argued that he only deleted the files because of department policy requiring departing employees to return laptops in the same condition in which they were issued. The defendant further argued his personal AOL log in information was only deleted to prevent others from obtaining his personal information. The court, however, found defendant s arguments patently absurd. There was no doubt that defendant was intentionally seeking to destroy this evidence to interfere with the investigation. By deleting the files--some of which have not been recovered in usable form or at all--he impeded the Government s investigation. The upward departure of two levels in sentencing was affirmed by the court. Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006). In a discrimination suit based on an ADA claim, the plaintiff appealed sanctions against him for evidence spoliation involving the deletion of 2,200 files from his work-issued laptop. The defendant s computer forensic expert determined the plaintiff intentionally wiped the laptop s hard drive before turning it over to defendant for examination. The plaintiff admitted to running a program designed to delete any files from the unallocated space on his hard drive but argued that the deletion was only performed to protect his privacy interests. The court, however, stated the plaintiff had ample notice to preserve any relevant evidence and the files he destroyed were not merely private and were potentially relevant to the litigation at hand. The appellate court determined that the district court did not abuse its discretion when determining that the plaintiff acted in bad faith in destroying electronic files and that defendant was prejudiced because of such destruction. The court agreed further that lesser sanctions would not be useful since any attempts to rectify the harm done by plaintiff would be futile. 3M v. Tomar Elec., 2006 WL (D. Minn. Sept. 18, 2006). In a patent infringement case, the district court upheld the magistrate s decision to award sanctions based on the defendant s discovery insufficiencies. In this case, the defendant repeatedly gave false testimony regarding the existence and content of relevant s of employees within his company. In addition, the defendant failed to inquire into whether other employees had potentially relevant material, but 184

185 merely looked at his own and files. The court found the defendant should have conducted a reasonable inquiry into whether employees had documents or information responsive to 3M's request and that he should have instigated a litigation hold after being notified of this litigation. The court held that such deliberate failure to comply with any rules of discovery warranted sanctions that included: adverse jury instructions, negative inferences to the jury and monetary sanctions to cover the costs of the plaintiff in bringing the motions related to the discovery and any future depositions needed to correct the defendant s withholdings. Del Campo v. Kennedy, 2006 WL (N.D. Cal. Sept. 8, 2006). During a claim under the Fair Debt Collection Practices Act, plaintiff filed a motion to prevent the destruction of documents and for an order requiring the parties to meet and confer to develop a document preservation plan. Defendant s company implemented a telephone recording system for one month where all calls were recorded and saved on digital media. Plaintiff claims that defendant circulated an internal memo during litigation advising employees to discard the recorded information in the normal course of business. Defendant argued that it wanted to be relieved from the "burden" of maintaining the digital evidence. However, the court refused to accept that maintaining digital evidence was a burden and ordered the defendant to preserve all electronic evidence. The court also ordered the parties to meet and confer to develop a preservation plan for electronic evidence. Ridge Chrysler Jeep, LLC v. Daimler Chrysler Servs., 2006 WL (N.D. Ill. Sept. 6, 2006). A court dismissed with prejudice plaintiffs racial discrimination claims when it found that plaintiffs consistently lied in affidavits and deposition testimony regarding the location of evidence, including electronic evidence, found on computer hard drives and backup tapes. The court also found that plaintiffs failed to properly preserve relevant financial records found on these computers and backup tapes. In dismissing the plaintiffs claims because monetary sanctions would not suffice to repair the harm inflicted on this case and on the judicial system as a whole, it declared: [t]hese are not the actions of truth-seeking individuals intent on having their day in court, but rather, sleight of hand tactics of manipulators seeking to use the federal court system to their own advantage. Quinby v. WestLB, 2006 WL (S.D.N.Y. Sept. 5, 2006). In an employment discrimination suit, the defendant sought a court order requiring the plaintiff to bear a portion of the costs for restoring and searching backup tapes. The defendant hired Kroll Ontrack to restore and search data from the following locations: 171 backup tapes; Kroll Ontrack s archives from a previous matter; and backup tapes containing for employees who worked outside the United States. The plaintiff argued the costs should not be shifted since the defendant had a duty to preserve the requested in an accessible format. The defendant argued its only duty was to preserve the evidence, it had no duty to preserve the data in a particular format, and a restoration of so many documents should fall on the plaintiff. The court agreed in part, holding the producing party does not have an explicit duty to preserve evidence in an accessible format. However, the producing party will bear the cost of producing any evidence preserved in an inaccessible format after litigation is reasonably anticipated. The court stated this would [P]revent parties from taking unfair advantage of a self-inflicted burden by shifting part of the costs of undoing the burden to an adversary. However, it if was not reasonably foreseeable that the evidence at issue would have to be produced, the responding party who converts the evidence into an inaccessible format after the duty to preserve evidence arose, could still seek to shift the costs associated with restoring and searching that evidence. For a small portion of the defendant s inaccessible data that the defendant could not have reasonably anticipated producing, the court relied on the Zubulake seven-factor cost-shifting test and ruled the plaintiff should share 30 percent of the production 185

186 costs. See also Quinby v. WestLB AG, 2007 WL (S.D.N.Y. Jan. 4, 2007) (amending the court s original cost-shirting decision relating to backup tape restoration costs). O Brien v. Ed Donnelly Enters., 2006 WL (S.D. Ohio Sept. 5, 2006). In a wage and hour claim against a former employer, the employee plaintiffs sought sanctions against the defendant employer for deliberately destroying discoverable documents. Plaintiffs argued that defendant destroyed records with a culpable state of mind. The documents in question were time card records printed out routinely and backed-up on defendant s in-house server. Defendants acknowledged that, while they intended to keep all time card records, they were not able to locate the records for a small fraction of the days for which the plaintiffs requested documents. Defendants stated that they did not realize until after the lawsuit was filed, that the records were missing. Defendants contended that, the records were created (and the electronic information overwritten) well before th[is] lawsuit was filed. The court denied plaintiffs motion for sanctions finding that the destruction or loss of evidence occurred before defendant had notice of the litigation and there was no evidence of intentional destruction. Moreover, the court ruled that plaintiffs perception of the deficiencies of defendants electronic record-keeping [was] simply irrelevant. Frey v. Gainey Transp. Servs., Inc., 2006 WL (N.D. Ga. Aug. 22, 2006). The plaintiff in a personal injury suit filed a motion for sanctions against defendant for failing to preserve satellite tracking information despite plaintiff s preservation letter to defendant before litigation started. The plaintiff s attorney sent defendant a 15-page letter 10 days after his client s accident demanding that defendant preserve certain evidence despite the fact that litigation had not started. Plaintiff claims that defendant failed to preserve electronic satellite information that tracks the location of defendant s drivers. The information is automatically deleted 90 days after it is saved on a server, and the requested information was deleted in the normal course of business. The court held that sanctions should not be issued because plaintiff was not prejudiced by lacking the evidence and that defendant did not destroy the evidence with bad faith even though it received plaintiff s letter. The court stated that it is difficult to allow a potential plaintiff to make an end run around the Federal Rules of Civil Procedure by filing a preemptive spoliation letter. Recinos-Recinos v. Express Forestry, Inc., 2006 WL (E.D. La. Aug. 11, 2006). In a class-action suit, plaintiffs filed a motion to compel for sanctions and for contempt against defendants for withholding documents, misrepresenting their availability throughout the entire litigation process, and for deliberate spoliation of evidence. Defendant claimed to have lost several key requested documents stored in an electronic form due to Hurricane Katrina. Defendant claimed to have lost these key documents because they were moved from the main Arkansas business office to defendant s Mississippi beach house on the Gulf of Mexico at the height of hurricane season. The court found that even if this unwise move of key documents to a susceptible area was not deliberate, it was, in the least, negligent and worthy of sanctions based on a failure to properly preserve documents. The court also discovered that several key officers of the defendant company lied during depositions and that the entire litigation was filled with defendant s resistance towards any discovery requests. The court chastised defendant, To date, trial preparation has been accomplished only through plaintiffs' Herculean efforts bolstered by staccato motions to compel and a corresponding series of orders compelling production of responsive documents and/or information because [d]efendants have continually flouted the orders of this Court. The court imposed monetary sanctions in the form of attorneys' fees plus expenses necessarily incurred. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL (M.D. La. July 19, 2006). The court awarded monetary sanctions against a defendant company for failing to preserve electronic evidence. The court established that the defendant s litigation hold came too late in the litigation 186

187 process because the company issued the hold policy after litigation had already started instead of when it was reasonably anticipated. Furthermore, the court found that the scope of the hold was not broad enough and did not prevent certain key employees from inadvertently discarding relevant information. Although the defendant had a litigation hold policy in place, the court ruled that defendant s policy was not adequate enough to fulfill preservation requirements. Plaintiff motioned the court to impose sanctions in the form of adverse jury instructions, but it declined to do so since there was no evidence that the spoliation occurred with malice or bad faith. Instead, the court issued monetary sanctions to compensate plaintiff for costs and fees related to discovering the spoiled evidence. Samsung Elecs. Co., Ltd. v. Rambus, Inc., 439 F.Supp.2d 524 (E.D. Va. 2006). In a patentinfringement case, the court refused to award attorney fees against the defendant for the spoliation of relevant evidence, finding the sanction inappropriate under either 35 U.S.C. 285 or the court s inherent power. However, relying on substantial documentation of the defendant s spoliation that was developed through discovery in two other cases, Rambus v. Infineon and Hynix Semiconductor, Inc., the court found the defendant implemented a document retention policy to justify destroying relevant patent infringement claims when the defendant anticipated, or reasonably should have anticipated, litigation with the plaintiff. The court found the defendant s vague litigation hold instruction to not destroy relevant documents did not satisfy preservation obligations in light of several factors, including: the large volume of documents destroyed, the extent and kind of evidence destroyed following the hold, the failure of the instruction to specify which documents were relevant to litigation, and the fact that the defendant had maintained no records of documents that were destroyed. In addition, the court offered guidance on how companies can comply with their preservation duties by modifying document retention policies already in existence. The court instructed companies to inform its officers and employees of a pending litigation and identify for them the kinds of documents considered relevant, in addition to collecting and segregating relevant documents. The court observed a company cannot make a document retention program an integral part of its litigation strategy and, pursuant thereto, target for destruction documents that are discoverable in litigation. Durst v. FedEx Express, 2006 WL (D.N.J. June 2, 2006). In an employment termination dispute, the plaintiff filed a motion in limine, seeking an adverse inference jury instruction stating the defendant had destroyed or failed to maintain relevant evidence that would have been damaging to the defendant s case. The plaintiff sought the spoliation inference after the defendant had failed to produce key accident reports, vehicle inspection records and s as demanded by the plaintiff. In response, the defendant denied having agreed to provide the requested documents and asserted the magistrate judge had never ordered production. Refusing to grant the plaintiff s motion, the district court observed that the plaintiff had never raised the issue during the discovery conference, informed the judge, or brought a motion to compel production of the allegedly destroyed documents. In addition, the district court noted that four essential factors are required for a spoliation inference, (1) that the "evidence in question [is] under the adverse party's control;" (2) "that there has been an actual suppression of this evidence, i.e., that [the evidence at issue] was intentionally untimely disclosed;" (3) that "the untimely disclosed evidence was relevant" to the plaintiff's case; and (4) "that it was reasonably foreseeable that [the spoliated evidence] would later be discoverable." The district court determined that the plaintiff had failed to demonstrate the requested documents were relevant, in the defendant s possession, or even existed. Krumwiede v. Brighton Assocs., L.L.C., 2006 WL (N.D. Ill. May 8, 2006). In an employment lawsuit, the defendants sought a default judgment against the plaintiff for destroying relevant computer data. The plaintiff insisted that the data had not been intentionally destroyed, 187

188 arguing that the files probably still existed on the defendants laptop with only minimal alterations in the files' metadata fields. However, a neutral computer forensic expert analyzed the laptop and concluded that the combination of a court order violation, deliberate movement of file data, admitted deletion activities, multiple use of defrag, use of ZIP file to conceal or transport [the defendants ] data, [and use of] multiple USB devices... [establishes that] [the plaintiff] did intend to destroy evidence and did intend to conceal the existence and/or movement of data. Issuing a default judgment against the plaintiff, the court found the plaintiff had continued to delete, modify and access thousands of files despite knowing the laptop was subject to a litigation hold. The court declared, [this] will send a strong message to other litigants, who scheme to abuse the discovery process and lie to the Court, that this behavior will not be tolerated and will be severely sanctioned. Vela v. Wagner & Brown, Ltd., 2006 WL (Tex. App. Apr. 19, 2006) substituted opinion and aff d by 203 S.W.3d 37 (Tex. App. 2006). Asserting a cross-appeal in an oil and gas case, the appellee challenged an award of $75,000 in monetary sanctions for spoliation of computer data and discovery abuse. The appellee argued, inter alia, it did not have a duty to preserve the computer data at issue, the data was not intentionally or negligently destroyed, and the appellants were not prejudiced by the absence of the data. During discovery, the appellee had failed to produce its testifying expert s underlying computer data work product. The appellee claimed the data had been stored on the expert s computer, which had been inadvertently upgraded and replaced by the expert s employer and was no longer available. The appellant sought to exclude the expert s testimony as a sanction for spoliation of the computer data. The trial court permitted the expert to testify but ordered the appellee to re-create the expert s calculations and provide the computer data to the appellants. When the appellee again failed to produce the data, the trial court awarded sanctions. On appeal, the appellate court affirmed the sanctions award stating, the trial court's order meets both parts of the test for a just sanction based on both a pattern of discovery abuse by [the appellee] and its failure to preserve and produce [the expert s] computer data. ACS Consultant Co., Inc. v. Williams, 2006 WL (E.D. Mich. Apr. 6, 2006). The plaintiff sought a temporary restraining order and a preliminary injunction enjoining the defendants, former employees of the plaintiff, from violating the terms of employment agreements. Granting the plaintiff s motion, the court noted that the defendants failed to return company-issued materials and electronic media and that the defendants provided third parties with trade secrets and confidential information. In issuing the order, the court enjoined the defendants from taking any action to delete, destroy, damage or wipe clean any computer hard drive, including [company-issued] laptops and Blackberrys, containing [the plaintiff s] confidential information or evidence relevant to this case. The court also required the defendants to return all of the plaintiff s property, including laptops, Blackberries and other data kept in any form or media. Creative Sci. Sys., Inc. v. Forex Capital Mkts., LLC, 2006 WL (N.D. Cal. Apr. 4, 2006). In a copyright infringement lawsuit, the plaintiff moved for sanctions claiming the defendants failed to comply with a preservation order. The preservation order required the defendants to preserve all relevant documents as defined under Federal Rule of Civil Procedure 34(a), including but not limited to all electronic evidence or evidence stored on computers regardless of the medium on which it is stored. Upon inspecting five of the defendants forty servers, a computer forensic expert found the operating systems on three of the servers had been reinstalled after the preservation order was issued. The defendants claimed they reinstalled the operating systems in order to test and install new software. Although finding an adverse inference instruction was not warranted, the court ordered the defendants to bear the cost of analyzing the remaining servers. The court concluded the failure of [the defendants and their] counsel to take affirmative steps to comply with 188

189 the Preservation Order-which would have caused [the defendants] not to reinstall the operating systems on the servers at issue-is evidence of at least some degree of bad faith. Afremov v. Amplatz, 2006 WL (Minn. Ct. App. Jan. 10, 2006). An attorney appealed a sanctions award prohibiting him from appearing before the district court. During discovery, the court ordered the attorney s client to immediately turn over his computer to a court-appointed recipient. A computer forensic expert examined the computer and found had been deleted on the morning the computer was handed over. The expert subsequently stated he recovered 300 s that were moved and may have been archived rather than deleted. The district court determined the attorney had instructed his client to "open the computer, turn it on and to look at 'what was in there.' " In sanctioning the attorney, the court found the attorney had been untruthful to the court directly and by omission, had deliberately and intentionally impeded discovery and violated the court's order, and had engaged in the spoliation of evidence that would not have been discovered without the services of an expert. On appeal, the court reversed the award on the grounds that the attorney s due process rights had been violated as the attorney was not provided with sufficient notice of a hearing at which sanctions might be considered. Hynix Semiconductor, Inc. v. Rambus, Inc. v., No. C RMW (N.D.Cal. Jan. 4, 2006). In a patent infringement suit, the plaintiffs argued the defendant s claims should be dismissed based on the defendant s adoption of a document retention policy that resulted in the destruction of potentially relevant electronic and paper documents. Prior to filing the litigation at issue, the defendant developed a document retention policy requiring the destruction of contained on backup tapes after three months. In addition, the defendant held several Shred Days during which employees were instructed to follow the retention policy guidelines to determine what to keep and what to throw away. In assessing the plaintiffs argument, the court noted the evidence failed to show the defendant targeted any specific document or category of relevant documents with the intent to prevent production in the upcoming lawsuit. The court further found the defendant s adoption of the policy was not designed to prevent the plaintiffs from obtaining evidence that would be helpful to the plaintiffs defense. For these reasons, the court declined to accept the plaintiffs argument and declared, [The defendant s] adoption and implementation of its content neutral Document Retention Policy in mid-1998 was a permissible business decision [and] did not constitute unlawful spoliation. Paramount Pictures Corp. v. Davis, 234 F.R.D. 102 (E.D. Pa. Dec 2, 2005). Alleging the defendant infringed upon its motion picture copyright, the plaintiff sought a permanent injunction, attorneys' fees and costs, and money damages. After uncovering the defendant s alleged activities by tracing his Internet protocol address, the plaintiff was granted access to the defendant s computer and hired a Kroll Ontrack computer forensic expert to conduct an examination. The expert determined that, after wiping all data off of his hard drive, the defendant reinstalled the operating system just 16 days after the defendant received notice of the lawsuit. As a result, it was impossible to determine whether the motion picture or related software was on the computer prior to the investigation. In defending his actions, the defendant claimed he wiped the drive in preparation for selling it to another individual. The court declared: This argument does not obviate his duty to preserve the computer's memory.... His failure to preserve this evidence places the fault for its destruction squarely upon Davis. Although the court determined an adverse inference instruction would be appropriate, it did not issue the instruction because the case was not being tried to a jury. As an alternative, the plaintiff proposed the court grant summary judgment in favor of the plaintiff. The court found such a remedy would be too severe and noted it would instead take the defendant s willful destruction of evidence into consideration at the time of trial. 189

190 In re Old Banc One Shareholders Sec. Litig., 2005 WL (N.D. Ill. Dec. 8, 2005). The plaintiffs sought default judgment or an adverse inference instruction based on the defendant s failure to preserve relevant documents relating to underlying data, calculations and drafts of relevant documents. Specifically, the plaintiffs argued that the defendant s document retention policy allowed for destruction of these essential documents and data. Despite being unable to locate and produce many of these documents, the defendant claimed it had met its preservation obligations. In evaluating the defendant s document retention handling, the court noted the defendant was not obligated to preserve every scrap of paper. The court, however, stated the defendant should have implemented a comprehensive document retention policy to ensure relevant documents were retained and should have distributed that policy to its employees. The court found the defendant did not comply with these requirements and determined the appropriate remedy was precluding the defendant from cross-examining the plaintiffs' financial expert at trial. Tantivy Communications, Inc. v. Lucent Techs. Inc., 2005 WL (E.D.Tex. Nov. 1, 2005.) In a patent infringement case, the plaintiff sought to exclude evidence based on the defendant s hide the ball discovery abuse. During discovery, the plaintiff had sought documents and data compilations including documents contained on the defendant s Internet Web site, relating to interoperability testing for the products at issue. The defendant had represented repeatedly it was unaware of any such documents. However one of the defendant s employees revealed at a later deposition, pursuant to the defendant s document destruction practices, paper documents were shredded and electronic documents were deleted that included interoperability contracts and test plans. Citing Zubulake, the court stated, [the defendant] and its counsel are well aware that a party in litigation must suspend its routine document retention/destruction policy and establish a litigation hold to ensure the preservation of relevant documents. The court further declared it would not allow lawyers or their clients to lay behind the log and disregard their discovery obligations. As a result, the court stated it would issue an appropriate remedy for both the defendant and its counsel after considering all the evidence. United States v. The Boeing Co., 2005 WL (D. Kan. Aug 31, 2005). The plaintiffs alleged the defendants concealed information and submitted false claims for payment relating to aircraft and parts delivered to the government. Claiming the defendants had attempted to "sweep evidence under the rug," the plaintiffs sought a preservation order, requiring the defendants to preserve documents, physical evidence, and electronic (computer-based) evidence for discovery and trial. The plaintiffs further claimed the defendants past conduct demonstrated a genuine concern they might destroy relevant documents. In reply, the defendants stated they had already taken appropriate steps to preserve relevant evidence within days of being notified of the lawsuit. The court found the plaintiffs failed to show that any evidence would be lost or destroyed absent a preservation order. In refusing to grant the preservation order, the court declared the defendants demonstrated they had the capability to preserve the evidence at issue. The court also issued an Initial Order Regarding Planning and Scheduling and stated, the parties have a duty under Rule 26(f) to meet and develop a discovery plan, including arrangements for electronic discovery in accordance with this court's Electronic Discovery Guidelines. Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D. Md. 2005). In an employment discrimination case, the plaintiff filed a motion for sanctions against the defendants for failing to preserve electronic documents and for spoliating evidence. Citing Zubulake, the court addressed the defendants duty to preserve s and other relevant documents. The evidence showed the defendants were on notice of the lawsuit long before they halted their data destruction policy. In fact, the defendants admitted they never issued a company-wide instruction regarding suspension of their data destruction policy and they did not save the plaintiff s s relating to 190

191 the harassment incidents or his termination. Based on this evidence, the court granted the plaintiff s motion for sanctions and issued an adverse inference jury instruction relating to spoliation of the s. The court declared the defendants acted in bad faith by failing to suspend their e- mail and data destruction policy and by failing to preserve essential personnel documents in order to comply with their preservation obligations. The court further stated, Given [the defendants ] status as a large public corporation with ample financial resources and personnel management know-how, the court finds it indefensible that such basic personnel procedures and related documentation were lacking. Foust v. McFarland, 698 N.W.2d 24 (Minn. Ct. App. 2005). The defendants appealed an $11 million jury verdict in a personal injury lawsuit involving an automobile accident. Specifically, the defendants argued that the trial court erred by barring evidence relating to the plaintiff s intentional spoliation of electronic evidence. The defendants also contended the court should have granted a mistrial or dismissed the case with prejudice, instead of granting a spoliation adverse inference instruction. Upon examining the plaintiff s computer, the defendants computer forensic expert had discovered evidence of child pornography, illegal downloads of intellectual property, and evidence that a software wiping program was used in an attempt to permanently delete data from the computer hard drive. The trial court refused to admit the evidence on the grounds that it was more prejudicial than probative. The trial court further concluded an adverse inference instruction was an appropriate spoliation sanction in light of the circumstances. On appeal, the appellate court determined the trial court properly issued the adverse inference instruction and concluded that intentional spoliation did not create a presumption that a dismissal with prejudice of the spoiling party s claims is the best and fairest sanction. The appellate court also found the spoliation evidence was appropriately excluded as some of the information was character assassination and was more prejudicial than probative. In re Ward, 701 N.W.2d 873 (N.D. 2005). A hearing panel found an attorney violated a state professional responsibility rule in failing to maintain duplicate records or electronic backup to account for portions of money placed in a client s trust account as an advance on future fees. The attorney argued the client s sister took the original fee record out of the client s file, and a computer virus destroyed the backup record. The court found the attorney violated the rule and stated, [a]lthough it is unfortunate that a computer virus destroyed Ward's backup billing record files, it does not relieve him of his duty to maintain records. AdvantaCare Health Partners, LP v. Access IV, Inc., 2005 WL (N.D. Cal. June 14, 2005). One of the Defendants, Porter, sought reconsideration of a default judgment issued against her and other defendants in a case involving unfair competition allegations by a former employer. The employer s computer forensic expert had previously discovered that another Defendant, Dangerfield, had copied numerous computer files prior to leaving the company and tried to conceal his actions by deleting the copied files from his hard drive. In an earlier order, the court had imposed $20,000 in monetary sanctions and issued an adverse inference instruction, directing the fact finder to conclude that the defendants copied all of the files on the employer s computers. Approximately seven months later, the court entered a default judgment based upon its factual determination that while the sanctions motion was under submission, the defendants wiped two hard drives clean and continued deleting files after the sanctions order was issued. In her current motion, Porter argued that the court should not have entered default judgment against her because the court never determined she personally copied or destroyed files. While noting this was true, the court stated, Porter apparently left compliance in Dangerfield's hands. The fact that Porter reposed trust in Dangerfield does not insulate her from the affirmative obligations placed upon all Defendants especially in light of the Court's repeated findings that Dangerfield has engaged in 191

192 misconduct with respect to AdvantaCare's files throughout this litigation. The court denied the motion for reconsideration and entered a default judgment against all of the defendants. Getty Props. Corp. v. Raceway Petroleum, Inc., 2005 WL (D.N.J. June 14, 2005). In a case involving property contamination allegations, the plaintiff filed a motion for sanctions against the defendant/third party plaintiff. Citing Zubulake V, the plaintiff requested an adverse inference instruction and costs, arguing the defendant failed to create and preserve alarm history reports contained in a computer system. The defendant argued the computer system did not automatically generate printed reports and that these reports were not generated in the ordinary course of business. The defendant further asserted that sanctions were unwarranted for failing to produce records it never even possessed. The court distinguished this case from Zubulake, stating that Zubulake deal[t] with the active deletion of data as opposed to the failure to create data. [The defendant s] failure to create more reports than it used in the daily activities of its business is not the kind of willful action that discovery sanctions are intended to redress. Stating the defendant was not responsible to produce records not kept within the normal course of business, the court declined to sanction the plaintiff for failing to preserve the records. Arndt v. First Union Nat l Bank, 613 S.E.2d 274 (N.C. Ct. App. 2005). In a dispute involving a contract made between the defendants and the plaintiff, the jury awarded the plaintiff over $830,000 in damages, relying in part on a spoliation instruction. Although the plaintiff had requested various s and profit and loss statements relating to the allegations, the defendant failed to preserve and produce these documents. As a result, the trial court had instructed the jury that, [e]vidence has been received that tends to show that certain profit and loss statements and s were in the exclusive possession of the defendant and, [sic] have not been produced for inspection.from this, you may infer, though you are not compelled to do so, that the profit and loss statements and the s would be damaging to the defendant. On appeal, the defendants argued, inter alia, that the instruction was unfairly prejudicial. The appellate court noted that testimony from one of the defendants employees indicated the defendants were on notice early on of the plaintiff s intent to sue but failed to preserve the plaintiff s s or hard drive. The employee further testified that no effort was made to save the hard drive even after receiving a letter from the plaintiff s counsel about the case. Based on this evidence, the appellate court determined the trial court did not err in giving the spoliation instruction. Arthur Andersen LLP v. United States, 125 S.Ct (U.S. 2005). After becoming of aware of Enron s financial difficulties, Arthur Andersen told partners working on the Enron team to ensure compliance with Andersen s document retention policy. Following that meeting, substantial paper and electronic documents were destroyed. At trial, the jury found Arthur Andersen guilty of knowingly, intentionally and corruptly persuading employees to withhold documents from a regulatory proceeding. The Fifth Circuit affirmed the decision. On appeal, the Supreme Court reversed and held that the jury instructions were flawed. The court declared that, under normal circumstances, a manager could instruct employees to comply with a valid document retention policy, even though the policy was partly designed to prevent others (including the government) from accessing certain information. The court found that the jury instructions erroneously implied the jury did not have to find any nexus between the "persua[sion]" to destroy documents and any particular proceeding. The court further stated that a " knowingly... corrup[t] persaude[r] cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material. Communications Ctr., Inc. v. Hewitt, No. S WBS KJM (E.D. Cal. Apr. 5, 2005). In a case arising from misappropriation of trade secrets, unfair competition, and other allegations, the 192

193 plaintiff brought a motion for terminating sanctions against the defendant for violating a magistrate s discovery order. The order required the defendant to produce a compact disc containing mirror images of any responsive hard drives in the defendant s possession. The production was to be designated for Attorney s Eyes Only and no documents were to be withheld from production. Although the defendant produced three CDs, the CDs were not mirror images of the defendant s hard drives. The defendant supplemented the production with ten discs, which also failed to contain mirror images. Days after the production, the defendant ran a software wiping program called Evidence Eliminator on three of the hard drives. The defendant claimed he purchased the program only after learning the true meaning of the mirror image as set forth in the magistrate order. He further stated he used the program to cover up evidence of an affair and to prevent disclosure of embarrassing Web sites. The defendant further admitted he re-installed an operating system on one of the drives, despite knowing that this would destroy data on the drive. The magistrate found this conduct a stark affront to the judicial process. Noting the destroyed data was gone forever, the magistrate awarded the plaintiff over $145,000 in costs and fees. The magistrate further recommended that a default judgment be entered for six out of the eight causes of action. People v. Samuels, 2005 WL (Cal. Ct. App. Mar. 21, 2005). The defendant appealed a jury conviction for grand theft relating to alleged exorbitant contingency fees charged by the defendant. Specifically, the defendant argued the trial court should have granted his pretrial motion to dismiss because the prosecution destroyed evidence that would have supported the defendant s claim of right defense. In the pretrial motion, the defendant contended state bar investigators failed to preserve case files and computer records necessary for his defense. He further alleged the state bar failed to provide an inventory of his computer files after they seized the files. When the case files and computer records were returned, they were incomplete, making it impossible for the defendant to prove the amount, complexity and nature of the work performed for his clients. Although the defendant filed an affidavit from an investigator who stated the computer was turned off abnormally while in the state bar s possession, the trial court refused to consider the evidence unless the affiant testified. The appellate court affirmed the trial court s judgment, concluding that the defendant failed to demonstrate bad faith on the part of the state bar or that any of the seized evidence was exculpatory or material. Weiller v. New York Life Ins. Co., 2004 WL (N.Y. Sup. Ct. Mar. 16, 2005). In a class action disability insurance coverage lawsuit in New York state court, the plaintiff sought a stipulation to a state court preservation order based on destruction in a related federal class action lawsuit by one of the defendants. See Keir v. UnumProvident, 2003 WL (S.D.N.Y. Aug. 22, 2003). Stating the order would be redundant because of the existing federal preservation orders, the defendants declined to stipulate to the order in state court but acknowledged their ongoing preservation duties. The defendants also asserted that preserving the computer information at issue would cost a considerable amount of money. In addressing the motion, the court noted it was almost a word-for-word duplicate of the orders previously issued in the earlier lawsuits and the defendant s destruction in the current lawsuit was inadvertent. Despite this, the court granted the motion, finding the federal preservation orders may not be sufficient protection for [the] plaintiff in this state action. Addressing the defendant s cost concerns, the court indicated it would entertain cost-shifting but not constrain the production of possibly relevant evidence on account of the later need to allocate cost. In re Vioxx Prods. Liab. Litig., 2005 WL (E.D.La. Feb 18, 2005). In a multi-district litigation, the court ordered all parties to preserve evidence relevant to the litigation, including relevant writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, 193

194 electronic messages, voice mail, , telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, checks statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such material. In addition, the court ordered perseveration of [i]nformation that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata. The court noted the parties were obligated to take reasonable steps to preserve this information until the parties formed a preservation plan agreement or the court ordered otherwise. Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217 (Tex. App. 2005). The plaintiff sought injunctive relief and damages against the defendants for misappropriating trade secrets obtained while working for the plaintiff. The trial court awarded more than $200,000 in actual and exemplary damages and entered a permanent injunction in favor of the plaintiff. As entered by the trial court, the injunction banned the defendants from [r]emoving or destroying any files, or copies of files, including but not limited to [the defendants ] computer or computer files. On appeal, the defendants argued the injunction was overbroad because it prohibited them from engaging in lawful routine document destruction of records or files unrelated to the plaintiff or the litigation. The appellate court agreed and modified the injunction to forbid the defendants from [r]emoving or destroying any files, or copies of files, including but not limited to Defendants' computer or computer files, relating to [the plaintiff]. Propath Services, LLP v. Ameripath, Inc., 2004 WL (N.D.Tex. Oct. 21, 2004). Alleging the defendants violated a non-compete employment contract, the plaintiffs sought a preliminary injunction against the defendants. The court had previously issued a temporary restraining order prohibiting the defendants from using confidential information, deleting relevant s or documents, and accessing the plaintiffs system. Among the items at issue were electronic marketing materials and a confidential client list. The defendant argued that the marketing materials including PowerPoint slides were not confidential since they were presented in public settings. While the court concluded that the PowerPoint presentations were not confidential, it nonetheless prohibited the defendants from having unrestricted access based on the plaintiffs right to protect their proprietary data. The court ordered the defendants to refrain from using any PowerPoint slides produced or modified during the defendants employment. Regarding the confidential client list, the court found that one of the defendants accessed the client list while simultaneously burning CDs and sending s that may have contained confidential information. Based on these findings, the court ordered the defendants to refrain from deleting or modifying any documents, s or computer drives that contained information about the plaintiff s business. The court further ordered the defendants to separate these materials from the rest of their files and to store them in a confidential file. In re Telxon Corp. Sec. Litig., 2004 WL (N.D. Ohio July 2, 2004). In a case involving alleged violations of the Securities and Exchange Act, the SEC requested documents from an accounting firm relating to its financial audit of the corporation being investigated. The corporation sought sanctions against the accounting firm, claiming the accounting firm committed fraud, misrepresentation, and breach of contract in relation to the corporation s financial statements. The corporation argued the accounting firm failed to produce all relevant documents and databases and versions of relevant documents and databases and to promptly protect the documents from alteration. They also claimed the accounting firm produced hard copy documents in versions 194

195 different from the electronic versions and failed to produce certain s, metadata and other documents. In reviewing the matter, the magistrate judge, in a recently unsealed opinion, found the absence of the s suggested spoliation after the accounting firm was on notice to preserve those documents. The magistrate also declared the accounting firm had to have known multiple database versions existed and the hard copy production failed to capture relevant components such as metadata of the database. The magistrate recommended default judgment in favor of the corporation, declaring [n]o reasonable person could believe that PwC s production to Telxon was a good faith production. The court further stated [b]ecause PwC s conduct has made it impossible to try this case with any confidence in the justice of the outcome, PwC should bear the burden created by its conduct. Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F.Supp.2d 27 (D.D.C. 2004). In a copyright infringement suit, the court issued an order compelling the defendant to produce computer servers, which hosted the defendant s web site and contained records of its users. When the plaintiffs computer expert inspected the servers, he discovered that the vast majority of that information had been intentionally destroyed after the defendant learned that litigation was imminent. The expert found that the defendant ran a program, designed to erase electronically stored information, more than 50 times from a remote location in an attempt to delete all electronic data from the servers. In spite of the defendant s attempts, the expert recovered a small amount of data to support the plaintiffs claims. Although the defendant attempted to attack the plaintiffs methodologies for extrapolating the number of users and downloads, the court indicated that the defendant was in a poor position to attack plaintiffs evidence, noting that [d]estruction of evidence raises the presumption that disclosure of the materials would be damaging. The court decided not to issue sanctions but instead encouraged the plaintiffs to move for appropriate sanctions as the case progressed. Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D.Pa. 2004). The defendant sought a preservation order requiring the plaintiff to preserve documents and things, including electronic documents. The plaintiff, in responding to the defendant s motion, countered with a preservation order request of its own, requiring the defendant to preserve and produce documents. In addressing the need for these orders, the court focused on the medium in which the evidence was stored. The court stated that [if] the evidence is stored upon a computer floppy disk or hard drive, finding physical space to store the evidence will not be as much of an issue [but] evidence stored within a computer hard drive may present a difficulty in that it may be compromised or degraded as new information is added and pieces of old information are deleted and subsequently written over by the computer. In discussing when an order would be appropriate, the court declared that timing is of the essence, particularly in cases where a party does not know that electronic evidence needs to be preserved. Denying both preservation order requests, the court determined that there was insufficient proof showing that evidence would be lost or destroyed absent these orders. The Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (Fed. Cl. 2004).The plaintiff, who alleged that the government mismanaged Indian tribe trust funds and other properties, moved for a document preservation order. The requested order would require the government to index electronic documents and would allow the plaintiff limited inspection of the documents. The government contended that the proposed order was unnecessary and overly burdensome, in part because document retention policies were already in place at the government agencies likely to be implicated in the suit. The court held that the plaintiff was required to demonstrate that absent a court order, there is significant risk that relevant evidence will be lost or destroyed. Additionally, the plaintiff must show that the particular steps to be adopted will be effective, but not overbroad. 195

196 The plaintiff was able to produce evidence that the government had lost and destroyed documents in the past, including electronic records containing potentially relevant information. Based on this evidence, the court ordered the government to preserve all documents, including electronic information, , and metadata that contained relevant information or that might lead to the discovery of relevant information. The court further required the government to index all the documents and to report any documents that were destroyed. The court indicated that the possibility of sanctions which the case law suggests may be severe provides the incentive needed to effectuate this preservation plan. Rambus, Inc. v. Infineon Techs. AG, 2004 WL (E.D.Va. Feb. 26, 2004), amended by, 220 F.R.D. 264 (E.D.Va. 2004)(subsequent determination by 222 F.R.D. 280) (E.D. Va. 2004)). The defendant moved to compel the production of documents including those documents relating to the plaintiff s document retention policy. The defendant alleged that the plaintiff instituted a document-purging program despite being on notice of impending litigation for the patents at issue. In support of its allegations, the defendant pointed to internal s that reflected the plaintiff s Shred Day, an event in which the plaintiff s employees shredded about two million documents as part of its document retention and destruction policy. At trial, the plaintiff did not dispute that it destroyed some documents because of their discoverability. Additionally, the trial court found that the plaintiff s creation of its document retention policy clearly demonstrated that the plaintiff was on notice that the defendant might be bringing patent infringement lawsuits. The plaintiff argued that its true motive was not to destroy potentially discoverable information and that the plaintiff was legitimately trying to reduce search and review costs. The court concluded that even if the plaintiff did not institute its document retention policy in bad faith, if it reasonably anticipated litigation when it did so, it is guilty of spoliation. The court further noted that even if it was merely instituting a valid purging program, even valid purging programs need to be put on hold when litigation is reasonably foreseeable. As such, the court granted the defendant s motion and ordered the plaintiff to immediately produce documents containing information about or relating to the creation, preparation, or scope of the plaintiff s document retention policy. Anderson v. Crossroads Capital Partners, L.L.C., 2004 WL (D.Minn. Feb. 10, 2004). In a sexual harassment and whistleblower lawsuit, the defendants sought to recover the hard drive of plaintiff's personal computer because it allegedly contained an October 2001 document outlining the harassment. After a protracted discovery battle, the defendants sought a Motion to Compel and the judge ordered the plaintiff to furnish the defendant with a "copy of all documents/files relevant to this litigation that exist on Ms. Anderson's personal computer as well as those that have been deleted or otherwise adulterated." Pursuant to the judge s Order, the defendants computer forensic expert examined the plaintiff s hard drive and discovered that a data wiping software application had been installed after the plaintiff had agreed not to delete any existing documents in a deposition. The computer forensic expert also found that the hard drive installed in the machine was manufactured in August The plaintiff claimed that she did not use the software program to destroy evidence, but that she used it routinely to protect her computer files. She also stated that in her view she owned the same computer throughout the litigation despite changing the hard drive in The defendants then moved to dismiss the complaint due to plaintiff s alleged discovery violations and destruction of evidence. The court noted that the plaintiff s exceedingly tedious and disingenuous claim of naiveté! regarding her failure to produce the requested discovery defies the bounds of reason but was not sufficiently egregious to warrant dismissal of the case. Instead, the court issued an adverse inference jury instruction because the plaintiff intentionally destroyed evidence and attempted to suppress the truth. 196

197 Wiginton v. Ellis, 2003 WL (N.D.Ill. Oct. 27, 2003). Two days after filing a sexual harassment class action suit, plaintiff s counsel sent the defendant a preservation letter requesting that all electronic materials and records relevant to the lawsuit be retained. Upon receipt of this letter, the defendant sent one to its employees requiring preservation of all documents relating to the plaintiff. The defendant continued to follow its normal document retention and destruction policies until several months later when the court entered a preservation order. system backup tapes were destroyed and former employees' hard drives (including the plaintiff s former supervisor) were not saved. The plaintiff sought a motion for spoliation sanctions. The court found that the defendant had the duty to preserve relevant electronic documents that were likely to be the subject of discovery requests, had knowledge of this duty, and willfully and intentionally did not fulfill this duty. Despite this, the court denied the plaintiff s motion for sanctions, stating that the extent of the lost electronic documents was not known. The court stated that the backup data that was preserved and produced by the defendant may perhaps give some insight into what was destroyed. If the plaintiff's expert is able to discover relevant documents on the backup tapes, then the plaintiff will be allowed to renew its motion for sanctions. Kucala Enters. Ltd. v. Auto Wax Co., 2003 WL (N.D.Ill. Oct. 27, 2003). After conducting an evidentiary hearing, the magistrate judge in the patent infringement suit Kucala Enters. Ltd. v. Auto Wax Co., 2003 WL (N.D.Ill. May 27, 2003), recommended that the plaintiff s claims be dismissed and that attorneys' fees and expenses attributable to the motion for sanctions be granted against the plaintiff for destroying computer evidence. The federal district judge rejected the magistrate's recommendation that the plaintiff's claims be dismissed with prejudice. The magistrate did so despite the fact that the plaintiff used computer software called "Evidence Eliminator" to delete files the night before a scheduled discovery inspection. The district judge stated that the interest of justice would be best served by adjudicating the claim and counterclaim at issue. The court upheld the magistrate's recommendation that the plaintiff bear the expenses flowing from the discovery misconduct. See also Kucala Enters. Ltd. v. Auto Wax Co, 2004 WL (N.D.Ill. Apr. 6, 2004) (Court awarded $93, in sanctions for the plaintiff s discovery misconduct and ordered the parties to provide full responses to outstanding discovery but denied the defendant's motion for a permanent injunction). Keir v. UnumProvident, 2003 WL (S.D.N.Y. Aug. 22, 2003). In an ERISA class action suit, the plaintiffs sought an order from the court directing the defendant to preserve all electronic evidence relevant to the matter. After noting that the defendant already had a duty to preserve any tapes containing s as of the date litigation commenced, the court ordered the defendant to preserve all relevant electronic data and to specifically preserve six days of records which were contained on backup tapes and hard drives. Instead of preserving all existing backups, or conducting a full tape backup, the defendant s technical staff decided to implement a special snapshot backup which would only preserve s on the system as of the day or days the snapshot was taken. In evaluating defendant s conduct with respect to the preservation order, the court stated that UnumProvident had ample time in the weeks before the December 27 [preservation] Order was signed to consult with its IT Department and with IBM to inform itself about the technological issues relevant to the preservation of electronic data so that it could bring accurate information to the negotiations of the preservation order and the conferences with the court in which the December 27 Order was shaped, and comply promptly with the Order after it was issued. The court found the defendant s failure to preserve was unintentional and criticized the defendant s poor compliance with the preservation order. The court recommended that further action be taken to determine the feasibility of retrieving the lost data and the extent of prejudice to the plaintiffs in order for the court to fashion a remedy for the plaintiffs. 197

198 Positive Software Solutions v. New Century Mortgage Corp., 259 F. Supp.2d 561 (N.D.Tex. 2003). To ensure no other potentially relevant information was deleted, the court ordered the defendants to preserve all backups and images of servers and personal computers that contain or contained files at issue. The court further ordered the defendant to refrain from deleting any such files still resident on any servers or personal computers and to preserve all backups or images. Finding the scope substantially overbroad, the court denied the plaintiff s motion to compel imaging "of all of defendants' media potentially containing any of the software and electronic evidence relevant to the claims in this suit" and "all images of [defendants'] computer storage facilities, drives, and servers taken to date. Liafail, Inc. v. Learning 2000, Inc., 2002 WL (D.Del. Dec. 23, 2002). The defendant alleges that upon issuing its document requests, the plaintiff engaged in electronic data spoliation including intentionally deleting computer files and damaging hardware. The court stated that the plaintiff's position on the whereabouts of the requested documents indicated questionable discovery tactics. Nevertheless, because the court record was unclear as to what had been produced, and what must still be produced, the court decided not to immediately sanction the plaintiff. Rather, the court gave the plaintiff time to correct or clarify the record by producing the requested documents which it has claimed as available. The court stated that should the plaintiff choose not to heed the court's order, the court would order sanctions in the form of an adverse inference jury instruction. In re St. Jude Med., Inc., Silzone Heart Valves Product Liab. Litig., 2002 WL (D. Minn. Mar. 1, 2002). The court entered a pretrial preservation order to address the parties obligation to preserve documents (including but not limited to electronic data, backup tapes and ). The order prohibited "the routine erasure of computerized information potentially relevant to the subject matter of this litigation," but stated that "[t]he full and complete back-up of any server or other computer on a periodic basis (e.g. monthly) shall relieve the party of any obligation to maintain any interim backups of the same server or other computer." Antioch v. Scrapbook Borders, Inc, 210 F.R.D. 645 (D.Minn. 2002). In a copyright infringement action, the plaintiff moved for issuance of an order directing the defendant to: preserve records, expedite discovery, compel discovery, and appoint a neutral computer forensics expert. Emphasizing the potential for spoliation of the computer data, the court stated we conclude that the defendants may have relevant information, on their computer equipment, which is being lost through normal use of the computer, and which might be relevant to the plaintiff's claims, or the defendants' defenses. Lombardo v. Broadway Stores, Inc., 2002 WL (Cal. Ct. App. Jan. 22, 2002). The court upheld sanctions where the defendant destroyed computerized payroll data that was the subject of the plaintiff s discovery request. RKI, Inc. v. Grimes, 177 F. Supp.2d 859 (N.D. Ill. 2001). In a trade secret misappropriation action against plaintiff s former employee, the court found that the defendant defragmented his home computer in an effort to prevent the plaintiff from learning that he had deleted confidential information and software. The court ordered the defendant to pay $100,000 in compensatory damages, $150,000 in punitive damages, attorneys fees, and court costs. Heveafil Sdn. Bhd. v. United States, 2001 WL (Ct. Int l Trade Feb 27, 2001). In an action challenging a U.S. Department of Commerce administrative review of an antidumping order, the court determined that the plaintiff failed to act to the best of its ability where six months after receiving notice about maintaining its source documents, it deleted relevant data from its computer system. The court found that the plaintiff did not cooperate to the best of its ability because after 198

199 receiving notice from [the Department of Commerce], it knew or should have known to maintain th[is] source document. Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D.Va. 2001). Based on computer forensic expert analysis, the court found that the defendant willfully and intentionally destroyed documents that should have been produced during discovery. The court issued adverse inferences and reimbursement of plaintiff s attorneys fees as damages for the spoliation. Trigon Ins. Co. v. United States, 2002 WL (E.D.Va. Dec. 17, 2002.). Despite objection by the defendant, the court found plaintiff s fees and expenses (in the amount of $179,725.70) for hiring and deposing computer forensics experts and briefing and adjudicating the issues related to the spoliation warranted and reasonable. Pennar Software Corp. v. Fortune 500 Sys. Ltd., 2001 WL (N.D.Cal. Oct. 25, 2001). In a breach of contract suit, the court imposed sanctions upon the defendant in the form of attorney s fees for committing spoliation of evidence and prolonging the discovery process. The court based its findings on the defendant s failure to present a maintenance policy, log files, or backup tapes that would track the website maintenance and deletion procedures. When the evidence was produced, the court found that the defendant tampered with and deleted evidence in order to evade personal jurisdiction. In re Pacific Gateway Exchange, Inc., 2001 WL (N.D.Cal. Oct. 17, 2001). In a securities violation case, the court lifted the discovery stay, stating The court finds that there is a significant risk that relevant documents, both paper and electronic, could be irretrievably lost, which could result in prejudice to the plaintiff. Minnesota Mining & Mfg. v. Pribyl, 259 F.3d 587 (7th Cir. 2001). The plaintiff brought suit against three former employees for misappropriation of trade secrets. The appellate court affirmed the trial court s negative inference instruction to the jury where the one defendant committed spoliation of evidence by downloading six gigabytes of music onto his laptop, which destroyed many files sought by the plaintiff, the night before the defendant was to turn over his computer pursuant to the discovery request. However, the fact that hard drive space was destroyed on one defendant s computer did not relieve the plaintiff from proving the elements of its claims. Long Island Diagnostic Imaging v. Stony Brook Diagnostic Assocs., 286 A.D.2d 320 (N.Y. App. Div. 2001). Where the defendants purged their computer databases against court order and produced compromised and unusable backup tapes, the court dismissed the parties counterclaims and third-party complaint as spoliation sanctions. The court stated The striking of a party's pleading is a proper sanction for a party who spoliates evidence. Case List by Topic 2011 Kroll Ontrack Inc. visit for the latest version Page 149 of 261 Last Revised 11/11 Danis v. USN Communications, 2000 WL (N.D. Ill. Oct. 23, 2000). The court found that the defendant failed to properly preserve information on the computer database. The court allowed the trial judge to inform jury that some of the gaps in the case were caused by defendant s failure to turn over computer tapes and documents. The court fined the CEO of the defendant company $10,000 for failing to properly preserve such electronic information, but denied plaintiff s motion for default judgment. Mathias v. Jacobs, 197 F.R.D. 29 (S.D.N.Y. 2000), vacated 2001 WL (S.D.N.Y. Sept. 27, 2001). The court found the plaintiff had a duty to preserve information contained on a Palm Pilot. Since plaintiff s conduct did not destroy evidence, but rather just made it more difficult to discover, the court imposed monetary sanctions as a consequence of the spoliation. 199

200 Illinois Tool Works, Inc. v. Metro Mark Prod., Ltd., 43 F. Supp.2d. 951 (N.D. Ill. 1999). The court held that sanctions, in the form of attorney s fees and additional discovery costs, against the defendant were warranted as a remedy for spoliation. Linnen v. A.H. Robins Co., 1999 WL (Mass. Super. June 16, 1999). The defendant Wyeth failed to preserve s and neglected turning over database information ordered by the court. The court sanctioned Wyeth for such inexcusable conduct and allowed spoliation inference to be given to jury. Telecom Int l Amer., Ltd. v. AT & T Corp., 189 F.R.D. 76 (S.D.N.Y. 1999). Even without a specific discovery order, a district court may impose sanctions for spoliation of evidence, exercising its inherent power to supervise the litigation before it. United States v. Koch Ind., 197 F.R.D. 463 (N.D. Okla. 1998). The plaintiff claimed that the defendant thwarted discovery attempts by destroying backup computer tapes and files. The court found that the defendant failed in its duty to preserve evidence that it should have known was relevant. The court allowed the plaintiff to inform jury that computer tapes and files were destroyed but did not allow negative inference. Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200 (Colo. Ct. App. 1998). The court held, as a matter of first impression, that a trial court may impose attorney fees and costs as sanction for bad faith and willful destruction of evidence, even absent a specific discovery order. In re Cheyenne Software, Inc. v. Securities Litig., 1997 WL (E.D.N.Y. Aug. 18, 1997). In a securities proceeding, the court imposed $15,000 in attorney s fees and sanctions for failing to heed the court s discovery order. The court also compelled the defendant to bear the cost of downloading and printing up to 10,000 pages of additional documents responsive to appropriate keyword searches requested by the plaintiff. Chidichimo v. University of Chicago Press, 681 N.E.2d 107 (Ill. App. Ct. 1997). Some jurisdictions recognize a tort action for negligent spoliation of evidence. ABC Home Health Servs. v. IBM Corp., 158 F.R.D. 180 (S.D. Ga. 1994). In action for breach of contract, the court sanctioned IBM for destroying computer files in anticipation of litigation. First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993). In order to justify proceeding ex parte the applicant must do more than assert that the adverse party would dispose of evidence if given notice. Instead, the party must demonstrate that the adverse party has a history of disposing of evidence or violating court orders Armstrong v. Bush, 807 F. Supp. 816 (D.C. 1992). The plaintiffs filed a motion for a Temporary Restraining Order (TRO) in order to prevent the destruction of presidential materials stored on an electronic communication system, including any systems that were altered during the course of litigation. The defendants objected, contending that discovery had been closed for over six months. The court rejected the defendants argument and issued the TRO, stating that the preservation of records on the tapes would not present an undue burden on the defendant. Cabinetware Inc., v. Sullivan, 1991 WL (E.D. Cal. July 15, 1991). The court issued a default judgment as a sanction for spoliation of electronic evidence. Destruction of evidence cannot be countenanced in a justice system whose goal is to find the truth through honest and orderly production of evidence under established discovery rules. Computer Assocs. Int l, Inc. v. American Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990). The court issued a default judgment where the defendant revised portions of the source code after being served in the action, and thus put on notice that the source code was irreplaceable evidence. Revised code was a central piece of evidence to the litigation. 200

201 William T. Thompson Co. v. General Nutrition Corp., 593 F. Supp (C.D. Cal. 1984). GNC was ordered to preserve all records that were maintained in the ordinary course of its business; despite this, company employees were instructed that these judicial orders should not require us to change our standard document retention or destruction policies or practices. The court ordered a default judgment and over $450,000 in monetary sanctions, where GNC deleted electronic documents that were not otherwise available. Sanctions Gatto v. United Air Lines, Inc., 2013 WL (D.N.J. Mar. 25, 2013). In this personal injury dispute, the defendants sought spoliation sanctions arising out of the plaintiff s destruction of relevant social media evidence. Despite complying with a court order mandating the plaintiff to change his Facebook password to allow the defendants counsel to access the plaintiff s social media account, the plaintiff deactivated his Facebook account after receiving an alert from Facebook that his account was being accessed by an unfamiliar IP address in New Jersey. The parties disputed over exactly how the information on the account was permanently deleted ( as noted by the defendants, the procedures for deactivating versus permanently deleting a Facebook account are not identical ), however, the court found it sufficient that any scenario involves the withholding or destruction of evidence. The court stated that spoliation occurs wherever a party fails to preserve property for another s use in pending or reasonably foreseeable litigation. Assessing whether an adverse inference instruction was appropriate, the court found three of the four factors clearly favored the defendants: the plaintiff was in control of the social media account, the evidence was potentially relevant to damages and it was reasonably foreseeable that the evidence would be discoverable. Regarding the second factor, which requires actual suppression or withholding of evidence, the court found that plaintiffs deactivation of the account was sufficient. The court granted the defendants request for an adverse inference instruction. E.E.O.C. v. Ventura Corp, Ltd., 2013 WL (D.Puerto Rico Feb. 12, 2013). In this case, the plaintiffs sought sanctions against the defendant for allegedly destroying relevant evidence of discriminatory hiring practices after they received notice in The defendant contested that the relevant information was deleted during a 2009 office restructuring and/or a 2010 software migration. The defense claims that it neither maliciously destroyed evidence nor deliberately attempted to prevent the EEOC from inspecting any document or information. The defendant also argued that it had no duty to preserve the deleted materials under 29 C.F.R , and that the plaintiff failed to show that relevant evidence had been spoiled. The court first considered the regulations, and found that the employer has an obligation to preserve records having to do with hiring, including resumes and s by key decision-makers both of which the defendant did not preserve. By extension, the court found the missing records potentially relevant and concluded that the plaintiffs met their burden by showing that relevant evidence was not produced by the defendant. Turning to the question of sanctions, the court noted its inherent power to impose sanctions when one party mishandles evidence and unfairly prejudices the other as a result. As such, the court concluded that the plaintiffs were placed at a significant disadvantage because they lacked records necessary to support claims of gender discriminatory hiring practices. Thus, because of the defendant s carelessness, the court precluded the defendant from offering evidence related to the number of males who applied to the job during the relevant time period and ordered an adverse inference with regard to the deleted . Christou v. Beatport, LLC, 2013 WL (D. Colo. Jan. 23, 2013). In this antitrust dispute, the plaintiffs alleged that the defendants attempted to deter A-list disc jockeys from playing at the 201

202 plaintiffs competing nightclub. Seeking an adverse inference instruction, the plaintiffs moved for spoliation sanctions after learning that the defendants failed to disclose any text messages from a key defendant s cell phone in response to the plaintiffs first discovery request. The defendants were clearly under a duty to preserve the information. The information was lost almost a year after the case was filed and the defendants received a litigation hold letter from the plaintiffs. However, the defendants alleged that the text messages contained no relevant evidence. The court found that while no party will ever know if the text messages contained relevant ESI, the defendants could not definitively show that the information was not relevant. They failed to preserve the messages and the messages could not be reviewed. The court held that because the defendants conduct was merely negligent, an adverse inference instruction would be too harsh. Instead, the court sanctioned the defendants by allowing the plaintiffs to introduce evidence of the litigation hold letter and defendants failure to preserve [the] text messages and argue for whatever inference they hope the jury will draw. The defendants will be allowed to rebut any inference by presenting evidence explaining their actions. Peerless Indus., Inc. v. Crimson AV, LLC, 2013 WL (N.D. Ill. Jan. 8, 2013). In this patent infringement case, the plaintiff moved the court to sanction defendants for failing to conduct a reasonable investigation of a third party s document production. The plaintiff established that the defendant was in control of the third party s documents because the principle of the defendant was also the principle and president of the non-party and exercised a considerable amount of... control over both corporations. The plaintiff argued that defendants failed to produce all relevant documents and submitted evidence that instead of overseeing collection directly, the defendants substantially relied on a vendor. Based on depositions taken from the managing director of the defendants who said that the non-party followed a process outlined I guess by the vendor, the court found that the defendants took a backseat, hands-off approach to collection which was insufficient. Granting plaintiffs motions for sanctions, the court ordered the submission of the plaintiff s bill of costs. Branhaven, LLC v. Beeftek, Inc., et al., 2013 WL (D. Md. Jan. 4, 2013). In this discovery dispute, the defendants sought sanctions under Rule 26(g) of the Fed.R.Civ.P. for failing to provide an adequate certification in response to the defendants requests for production. In its response to each request, the plaintiff stated in March, 2012, that [Branhaven] will make the responsive documents available for inspection and copying at a mutually convenient time. The plaintiff produced only 388 pages before the July 20 th production date. On the date of production, only a couple of business days before depositions, the plaintiff produced 112,106 pages of PDFs (some of which were not bates-stamped) from servers that the plaintiff allegedly did not originally have the passwords to and two laptops which went missing. From the timing and manner of the July 20 production, the court inferred that when the plaintiff filed its response in March, offering production of responsive documents for review it had not even obtained access to some of the files, much less reviewed them. After finding that the document dump violates Fed.R.Civ.P. 26(g), the court also found the nature of production astray of Fed.R.Civ.P. 34(b)(2)(E)(ii) (requiring production of ESI in the form in which it is ordinarily maintained or in a reasonably usable form ). The court sanctioned the plaintiff and counsel jointly and severally for attorney s fees and costs associated with the last minute and inadequate form and manner of the production. Micron Tech., Inc. v. Rambus, Inc., No SLR (D. Del. Jan. 2, 2013). On remand in this patent infringement case, the issue for the District Court was whether the plaintiff acted in bad faith when it engaged in the spoliation of evidence, thus rendering the patents-in-suit unenforceable against the defendant. Assessing the question of bad faith spoliation, the court provided four main 202

203 categories of facts that support a finding of bad faith: 1) facts that show that the plaintiff s document retention policy was adopted only as a weapon for litigation; 2) facts that show that the plaintiff s document retention policy was selectively executed, with suspicious documents discarded; 3) facts that show that the plaintiff knew of the impropriety of the document retention policy, minimizing discussion thereof via , and; 4) plaintiff s litigation misconduct, and misrepresentations in depositions about the number of shred days. In determining that the plaintiff s behavior was consistent with all four categories of facts, with a focus on the fact that the document retention policy was executed with the intention to impede the fact-finding efforts of defendant, the court concluded that the appropriated sanction was to declare the patents-in-suit unenforceable against the defendant. Day v. LSI Corp., 2012 WL (D. Ariz. Dec. 20, 2012). In this employment case, the plaintiff alleged that the defendant s General Counsel failed to preserve relevant documents, which included those in the possession of a relevant custodian who was involved in the plaintiff s hiring and firing. After receiving notice of the plaintiff s potential claims, the General Counsel issued a litigation hold notice, but forgot to issue the notice to the particularly relevant custodian. Six months later, the custodian was finally identified, but efforts to retrieve his ESI resulted in an incomplete record of data, along with several other categories of information allegedly destroyed because of the General Counsel s preservation failures. Noting that the preservation failures were evidence that the General Counsel had a culpable mind, the court imputed the General Counsel s culpable mind to the defendant, as a whole; thus, sanctions were warranted. Based on the fact that lost evidence that was highly relevant for one of the plaintiff s claims and that there was a high risk of substantial prejudice, the court found that an adverse inference instruction at trial, as well as $10,000 in monetary sanctions, is appropriate in this case. E.I. DuPont de Nemours and Co. v. Kolon Industries, Inc., 2012 WL (E.D. Va. Dec. 13, 2012). In this trade secret litigation, plaintiff sought attorneys fees in the total amount of nearly $19 million in fees related to defendant s spoliation of evidence and misappropriation of trade secrets pursuant to the Virginia Uniform Trade Secrets Act (VUTSA), and over $10 million in nontaxable costs pursuant to the court s inherent authority under 28 U.S.C VUTSA provides that [i]f the court determines that... (ii) willful and malicious misappropriation exists, the court may award reasonable attorneys fees to the prevailing party. Following two years of discovery and motions practice, a jury found that the defendant had willfully and maliciously misappropriated and used 149 of the plaintiff s trade secrets, which the court in this case recognized. The court thus moved on to address the reasonableness, under Virginia law, of the plaintiff s request for fees related to defendant s spoliation and misappropriation of trade secrets, ruling that the court s inherent federal authority did not overcome the assessment of reasonableness under state law. In the end, the court stated that further briefing is required to determine reasonableness of the plaintiff s fee request, and denied the award of non-taxable costs based on lack of support for that award under federal or state law. Bozic v. City of Washington, 2012 WL (W.D. Pa. Dec. 5, 2012). In this employment discrimination case alleging violations of Title VII of the Civil Rights Act of 1964, the plaintiff sought sanctions against the defendant city for recording over a conversation between the plaintiff and several city employees shortly before her termination as a firefighter in March In several affidavits, the city solicitor could not specify when he deleted the recording. He asserted that he did so when litigation was no longer anticipated after a March 2010 remand hearing denied unemployment benefits and before a June 2010 notice of a civil suit via the EEOC. Reviewing the matter, the court relied on the Third Circuit opinion in Bull v. United Parcel Service to determine whether the duty to preserve was reasonably foreseeable and whether there had been actual 203

204 suppression or withholding of evidence amounting to bad faith. Based on the facts, the court found litigation might not have been anticipated during the period between the March 2010 hearing and the June 2010 notice. However, the city solicitor mentioned a possible civil suit by the plaintiff in a May , leading the court to conclude that the defendant should have, and did in fact know that litigation to which the recording was material was pending during that period. Considering the culpability of the defendant, the court noted that Bull did not clearly define the requisite mental state for bad faith and instead considered whether the defendants evinced a reckless disregard for the consequences of willfully destroying evidence preserved for subsequent and foreseeable litigation. With regard to the city solicitor s conduct, the court answered in the affirmative and ordered sanctions in the form of an adverse inference instruction and reasonable costs. Banks v. Enova Fin., 2012 WL (N.D. Ill. Nov. 30, 2012). In this employment discrimination and retaliation litigation, U.S. Magistrate Judge Nan Nolan ordered sanctions against the defendant employer in July 2012 for destroying evidence through routine data retention policies. Judge Nolan did not find the defendant acted grossly negligent and thus ordered that the court instruct the jury with a spoliation charge should the matter proceed to trial. The spoliation charge was distinguished from an adverse inference instruction, noting that a charge does not require the jury to presume the lost evidence is both relevant and favorable to the innocent party. The defendant objected to these sanctions, asserting that Judge Nolan lacked authority to impose sanctions under Fed. R. Civ. P. 37 absent a finding of bad faith. Responding, the court noted that while adverse inference instruction requires a finding of bad faith, Judge Nolan did not order such a sanction and acted lawfully within her discretion by imposing the spoliation charge. Additionally, the defendant challenged Judge Nolan s findings that they had a duty to preserve audio recordings of the plaintiff allegedly hanging up on a customer, which ultimately lead to the plaintiff s termination. The court found that the duty to preserve arises when a party knew or should have known that litigation was imminent, further noting it would be unreasonable to require an employer to preserve all documents forming the basis of the termination. However, the court found that the plaintiff s termination essentially triggered a lawsuit, and the deleted audio recording was a key piece of evidence related to potential litigation. Thus, the court wholly affirmed Judge Nolan s July 2012 decision. Taylor v. Mitre Corp., 2012 WL (E.D. Va. Nov. 8, 2012). In this case involving alleged violations of the Americans with Disabilities Act and the Family and Medical Leave Act, the defendant moved the court to sanction the plaintiff for destroying relevant evidence. The defendant argued that the plaintiff spoliated evidence when he destroyed his work PC with a sledge hammer after signing a letter from his first lawyers acknowledging his duty to preserve electronic evidence. Additionally, evidence showed that after the plaintiff retained new counsel and filed his claim, the plaintiff installed and ran programs that destroyed evidence on his laptop while facing a court order to submit to a computer inspection. The court found that the plaintiff reasonably anticipated litigation when his first lawyers informed him of his duty to preserve, and that there was no gap in the plaintiff s preservation duty when he retained new counsel in pursuit of the same or similar claims. Because the court determined that the plaintiff was making relevancy decisions without input from counsel and found that potentially relevant evidence was lost, the court concluded that willful, egregious spoliation occurred which warranted dismissal. Botell v. United States, 2012 WL (E.D. Cal. Sept. 19, 2012). In this wrongful death case, the plaintiffs sought further responses to several production requests. The plaintiffs argued that the defendant s production of 7000 documents was incomplete, despite both parties efforts to meet and confer. The plaintiffs alleged that the documents produced by the defendant showed the existence of five other custodians with relevant s, as well as specific documents that should 204

205 have been included in the defendant s responses. While the defendant had been purportedly searching for these documents for months, the court noted that it has no confidence that the defendant performed an organized, thorough search. Analogizing defendant s document production to drop-by-drop water torture, the court entered a preclusion order barring the United States from presenting evidence in its case that was requested by plaintiffs in their requests for production if not produced within 14 days of the order. Multifeeder Tech., Inc. v. British Confectionery Co. Ltd., 2012 WL (D. Minn. Sept. 18, 2012). In this breach of contract case, the plaintiff moved to compel the defendant to produce responses to document requests to prove that defendant was capable of performing on the contract. Six months later, the plaintiff motioned the Magistrate to sanction the defendant on account of deficiencies in production. The plaintiff further requested the Magistrate to appoint a computer forensics expert to image and search the defendant s computers for responsive documents. After the parties failed to cooperate and settle this disagreement, the Magistrate ordered a computer forensics vendor to image and search defendant s computers. The vendor reported to the Magistrate that certain files were purged or deleted shortly before the image and search commenced. After further investigation, the Magistrate found that spoliation had occurred and recommended sanctions of $475,000. The plaintiff brought this motion before Judge Tunheim for sanctions, and asked for a higher award to cover the nearly half a million dollars of costs incurred by the vendor, as well as attorneys fees. In light of the defendant s clear and convincing evidence of the defendant s spoliation, Judge Tunheim awarded sanctions in the amount of $600,000 and also ordered the defendant to pay the Court $25,000 as a sanction for the abuse of the Court s processes. Coquina Invs. v. Rothstein, 2012 WL (S.D. Fla. Aug. 3, 2012). In this case regarding fraudulent representation in a large ponzi scheme, the plaintiff sought sanctions against the defendants for incomplete production and other discovery misconduct. Specifically, the plaintiff found issue with a due diligence PDF form produced by the defendants which was illegible in certain sections, formatted in a significantly different fashion than the native TIFF document, and missing embedded metadata regarding the file s archive and editing history. Reviewing the defendants discovery in which two firms were retained and over 200 attorneys were involved the court found that the defendants counsel failed to consult their service provider before production and produced the due diligence form under the mistaken assumption that the defendants ordinarily maintained their records as hardcopy documents. Accordingly, the court found that the defendants counsel negligently produced in an insufficient format. Furthermore, the court noted that the defendants acted willfully in failing to rectify [their counsel s] error allowing it to endure and hid behind their counsel s mistakes. Thus, the court rejected the defendants argument that they were unaware of their counsel s missteps and ordered the defendants and their counsel to pay the plaintiff s attorney s fees and costs for litigating motions related to production. Hameroff & Sons, LLC v. Plank, LLC, 2012 WL (N.Y. Sup. Ct. Aug. 13, 2012). In this spoliation case, the plaintiff sought an order of preclusion based on the defendant s alleged failure to provide relevant s in response to discovery. The defendant conceded that he deleted the s, but that he did so in good faith pursuant to standard business practice. The plaintiff countered that the defendant was on notice that litigation would ensue as early as July Further, the plaintiff established that the defendant sent copies of deleted relevant s with former counsel in an to his attorney dated March 9, 2010 presumably after the duty to preserve was triggered. The court found that this evidence refutes the defendant s explanation that he destroyed the s in good faith. Finding the spoliation willful and contumacious, the court used the Zubulake spoliation test to preclude the defendant from introducing testimony or 205

206 documentation about the subject of the s in his counterclaim or defenses. Additionally, the court awarded costs and attorney fees to the plaintiff. EEOC v. Fry s Elecs. Inc., 2012 WL (W.D. Wash. July 3, 2012). In this workplace harassment case, the court found that the defendant spoliated evidence, including ESI, from the plaintiffs workplace. Prior to this order, the court believed that the prejudicial effect of the spoliation could be neutralized by allowing the plaintiffs leeway to argue what information might have been included in the spoliated evidence. However, in a subsequent Rule 30(b)(6) deposition, the plaintiffs discovered for the first time that one of the defendant s employees had been accused of sexual harassment in 2001 and that an investigation was conducted. Later, it was also discovered that a store manager tasked with investigating a plaintiff s sexual harassment complaint had himself been accused of sexual harassment. The court indicated that the defendant intentionally withheld this information and related evidence from discovery by raising unfounded objections and negotiating narrowed discovery requests. Further, the court noted that the failure to turn over these documents until after the defendant s summary judgment motion was fully briefed and shortly before arbitration began prejudiced the plaintiffs, increased litigation costs, put the defendant s discovery responses into doubt, and compromised the integrity of the judicial process. The court struck the defendant s affirmative defenses, allowed complaints and reports of sexual harassment to be presumptively admissible at trial, imposed $100,000 in sanctions, and stayed the entire matter pending appointment of a special master to review the defendant s document retention and discovery activities. Chin v. Port Auth. of New York & New Jersey, 2012 WL (2nd Cir. July 10, 2012). In this employment discrimination case, eleven plaintiff employees sued the defendant employer for alleged violations of Title VII of the Civil Rights Act of In discovery, the plaintiffs learned that the defendant failed to implement a document retention policy, which resulted in the spoliation of at least thirty-two promotion folders used to make promotion decisions from August 1999 to August The plaintiffs also learned that the defendant failed to issue a litigation hold regarding the promotion folders at any point between 2001 and 2007, and thus argued that this inaction amounted to gross negligence. However, the court rejected the argument that a failure to institute a litigation hold automatically constitutes gross negligence per se, contrary to the rule of the Zubulake case. Instead, the court ruled in favor of a case-by-case approach, in which failure to preserve documents is one of multiple factors in the determination of whether to issue sanctions. In the end, the court upheld the district court s conclusion that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process, as well as the plaintiffs ample evidence regarding their relative qualifications when compared with the officers who were actually promoted. Goldmark v. Mellina, A T2 (N.J. Super. App. Div. June 18, 2012). In this contract dispute, the defendants counsel contested a sanction levied against his firm by arguing that his failure to preserve allegedly privileged s fell short of sanctionable conduct. Specifically, the defendants counsel argued that no case law supported the sanction because their conduct was not deliberately improper. Citing Rule of Court 4:10-2(e)(1), the court held that after a party determines that relevant material is privileged or protected from discovery, it must preserve that information. Furthermore, the court found that the defendants duty to preserve was triggered when their attorney logged the s as privileged, if not earlier. Upholding the $5,502 award of attorneys fees and costs, the court stated that to allow the defendant or his counsel to destroy or carelessly lose the s thereafter would make a mockery of the state s discovery rules. Calvert v. Red Robin Int l, Inc., 2012 WL (N.D. Cal. May 11, 2012). In this wage and hour class action, the defendant motioned to impose sanctions and disqualify the class 206

207 representative for failing to disclose relevant evidence in the form of Facebook conversations with putative class members. After the plaintiff failed to submit initial disclosures on three separate occasions, the defendant made a request for production of documents, and the plaintiff moved for class-wide discovery. Upon deposing the plaintiff, the defendant learned of the plaintiff s repeated cycle of attempts to contact putative class members in an attempt to recruit additional class members, as well as to suborn perjury. Despite several requests for these messages, the plaintiff claimed ignorance of such conversations, blamed counsel for insufficient production, and testified that they did not delete any content. Once the defendant filed a motion to disqualify the plaintiff as class representative, several incomplete Facebook conversations were produced many of which contradicted the plaintiff s earlier assertions. Reviewing the plaintiff s conduct, the court found repeated non-compliance with basic discovery obligations and disqualified the plaintiff as class representative. Additionally, due to the plaintiff s bad faith efforts to suborn perjury, the court imposed sanctions in the amount of $15,985 Stanfill v. Talton, 2012 WL (M.D.Ga. Mar. 29, 2012). In this discovery dispute, the plaintiff sought an adverse inference sanction stemming from the defendants detention center s failure to preserve video recordings relevant to plaintiff s allegations of excessive force resulting in the death of an inmate. The defendants contended that their conduct failing to make copies of video recordings before the recordings were automatically overwritten (ordinarily a two to three month window) was not sanctionable. They argued that they could not have reasonably anticipated litigation at the time of deletion. Alternatively, the defendants argued that they lacked requisite bad faith culpability. Applying federal law, the court reasoned that while the excessive force incident was immediately subject to independent review by the state investigation bureau, that alone was not enough to trigger a duty to preserve the tapes for a claim filed over two years after the death of the inmate. Further, the court found that even if the defendants owed a duty to preserve to this particular plaintiff, the defendants failure to copy the video recordings only amounted to negligence. Therefore, there was insufficient evidence to warrant an adverse inference sanction. In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 WL (N.D. Ga. Feb. 3, 2012). In this antitrust case, the plaintiffs moved for sanctions for the defendant s alleged failure to make a reasonable inquiry before certifying responses to discovery requests. Despite the defense counsel s repeated, forceful assurances that they had fully complied with production requests, the defendant discovered and produced 60,000 pages of missing responsive documents. The documents were located in backup tapes found in an evidence locker controlled by IT and hard drives that were not uploaded into the defendant s search platform. Although the defendant remedied its mistake and the data sources were devoid of any smoking gun documents, the court found that the defendant s lackluster communication with IT, empty reassurances of a seamless production and failure to correct false statements fell short of the certification requirements under Fed.R.Civ.P. 26(g). The court also noted that the defendant s late discovery was sanctionable under Fed.R.Civ.P. 37(c)(1) and Fed.R.Civ.P. 26(e) (collectively requiring timely supplementation). The court cited the same general lack of diligence by the defendant and awarded reasonable attorney fees resulting from the delay. Voom Holdings LLC v. EchoStar Satellite L.L.C., 2012 WL (N.Y.A.D. 1st. Dept. Jan. 31, 2012). At issue in this contract dispute was the scope of a party s duties in discovery. On June 20, 2007, the defendant s counsel sent the plaintiff a letter containing the defendant s express notice of breach of contract. In January 2008, the defendant terminated the contract, and the plaintiff sued the following day. However, the defendant did not implement a litigation hold until after the lawsuit commenced. Furthermore, the defendant s purported hold did not suspend automatic deletion of 207

208 s, by which any s sent or deleted by an employee were automatically and permanently purged after seven days. Four months after the commencement of the action, the defendant finally stopped the automatic deletion of s. Upon this revelation, the plaintiff moved for spoliation sanctions. Citing Zubulake, the state trial court granted the motion and held that the defendant should have reasonably anticipated litigation and preserved potentially relevant ESI no later than June 20, 2007 the date of its own notice of breach letter and ceased the automatic deletion of its s. Giving credence to the lower court s adoption of the Zubulake standard, the Appellate Division upheld sanctions for the defendant s grossly negligent spoliation of ESI. The court noted that the spoliation was especially negligent given that the defendant was put on notice of its substandard ESI retention practices in a recent, similar lawsuit. Yelton v. PHI, Inc., 2011 WL (E.D.La. Dec. 7, 2011). In this dispute related to litigation following a helicopter crash, the defendant who owned the helicopter cross-motioned the defendant who manufactured the helicopter for product liability. With regard to discovery, the owners argued that the manufacturer spoliated evidence by delaying a litigation hold to a key custodian until relevant data on his laptop was deleted. Although the manufacturer initially issued a litigation hold to several key custodians before the initial lawsuit was filed, they did not issue a hold to a staff engineer, who was hired at the time of the accident to investigate the cause of the crash, until two years later. During those two years, counsel for the manufacturer relied heavily on the staff engineer's report for the defense, and the laptop containing data from the investigation was reformatted and resold before a hold was issued. The court found a "significant degree of culpability" in the manufacturer's conduct that prejudiced the owner of the helicopter's defense. Accordingly, the court granted the plaintiff's motion, awarding monetary sanctions and ordering an adverse inference against the defendant manufacturer. Nacco Materials Handling Grp., Inc. v. Lilly Co., 2011 WL (W.D.Tenn. Nov. 16, 2011). In litigation arising from the defendant's repeated illegal access to the plaintiff's "secure dealer" website, the plaintiff sought sanctions for the defendant's discovery misconduct. After preliminary forensic analysis of 35 of the defendant's computers, the plaintiff discovered that the defendant did not issue a company-wide litigation hold and left collection up to individual employees absent managerial oversight. Additionally, the plaintiff found that the Rule 30(b)(6) deponent produced by the defendant did not review any of the particular files in question and was improperly prepared for deposition. Finding the defendant's "woefully inadequate" preservation and collection methods negligent at minimum, the court found sanctions appropriate, but limited them due to plaintiff's failure to substantiate the amount of prejudice suffered from the defendant's misconduct. As such, the court awarded monetary sanctions related to the cost of the previous forensic examination, additional imaging of company computers and reasonable fees and costs the plaintiff incurred in the motion. Gentex Corp. v. Sutter, 2011 WL (M.D. Pa. Oct. 24, 2011). In this action alleging violations of the Computer Fraud and Abuse Act, the plaintiff sought default judgment sanctions alleging the defendants intentionally deleted relevant ESI by prematurely lifting a litigation hold, erasing a home computer belonging to one of the defendants, delaying preservation of computers and deleting files, defragmenting disks, and destroying server backup tapes, ghost images, portable storage devices, s and a file server. First, the court determined that genuine issues of material fact existed as to whether one of the defendants should be sanctioned and excluded the defendant from this opinion. Second, the court found two of the other defendants engaged in spoliation and that sanctions were appropriate. The court considered several factors including fault, prejudice and proportionality, and determined that default judgment was appropriate given the 208

209 defendants unabashedly intentional destruction of relevant, irretrievable evidence and egregious conduct. Who Dat Yat Chat, LLC v. Who Dat, Inc., 2011 WL (E.D. La. Sept. 30, 2011). In this trademark litigation, the defendants requested a finding of contempt and sought sanctions alleging the plaintiff failed to comply with court discovery orders and altered response deadlines. Objecting, the plaintiff claimed it did not act willfully or in bad faith, and that it was waiting for a written court order before proceeding. Finding no good cause for the plaintiff s noncompliance the court noted the glaring problem that this was the plaintiff s seventh attempt to fulfill its discovery obligations and determined the plaintiff was in contempt. Although the court awarded the defendants with attorney fees in connection with the subject motion, it refused to strike the plaintiff s affirmative defenses as requested by the defendants because other sanctions were available. Mikhlyn v. Bove, 2011 WL (E.D.N.Y. Aug. 3, 2011). In this trademark infringement and unfair competition litigation, the defendants responded to the magistrate judge s sanctions recommendation claiming their formal counsel alone is responsible for discovery misconduct. Although the magistrate judge previously found that the defendants misconduct was not egregious enough to warrant the plaintiffs original request for default judgment, he recommended reopening discovery to determine whether plaintiffs allegations of unproduced e-communications were true. Following this, newly discovered evidence revealed that tens of thousands of s, documents and Skype chats were in the defendants possession, known about by counsel, not produced and not identified in a privilege log. In light of this new evidence, the magistrate judge reconsidered his previous recommendation and apportioned fault, fees and costs between the defendants and their former counsel, finding them both responsible for the discovery misconduct (a separate firm assisting with the intellectual property issues was not found liable for any discovery missteps). As a result, the magistrate judge recommended the plaintiffs be awarded $48, in attorney fees and costs. Neverson-Young v. Blackrock, Inc., 2011 WL (S.D.N.Y. Aug. 11, 2011). In this employment litigation, the defendants sought sanctions alleging the plaintiff failed to produce relevant information and further spoliated evidence by donating her personal computer to an overseas school after commencing the action. Finding the plaintiff's actions constituted negligence, the court determined the plaintiff did not act in bad faith. Instead, the court determined that unlike corporate actors, the plaintiff in this case was unsophisticated and unaccustomed to preservation requirements. Further, the court noted the belatedly produced s were withheld under good faith misconceptions of relevance and privilege, and held it is not standard practice for litigants to preserve their own telephone records in anticipation of litigation. Finding no evidence of prejudice or bad faith, the court declined to impose sanctions, but awarded reasonable fees and costs incurred by the defendants through searching the plaintiff's hard drive and obtaining her records Katiroll Co., Inc. v. Kati Roll and Platters, Inc., 2011 WL (D.N.J. Aug. 3, 2011). In this trademark infringement litigation, the plaintiff sought spoliation sanctions citing the defendants' alleged series of discovery abuses, including the failure to preserve Facebook pages in their "original state." Citing the split within the Third Circuit regarding culpability, the court applied the "best rule" in determining whether sanctions were warranted: "Where there is substantial prejudice to the opposing party, negligence may be sufficient to warrant a spoliation inference. Where there is minimal prejudice to the opposing party, intentional conduct is required." Applying this standard, the court determined the sanctions would be unjust because the spoliation was in response to the plaintiff s request that the image be removed. However, the court determined the loss of the 209

210 Facebook data at issue was somewhat prejudicial and ordered an individual defendant to re-post the previous profile picture to allow the plaintiff to print any posts it felt were relevant. PIC Grp., Inc. v. LandCoast Insulation, Inc., 2011 WL (S.D. Miss. July 7, 2011). In this commercial liability litigation, the court reviewed the recommendations of a special master assigned to investigate alleged discovery abuses and provide a report on the plaintiff s motion for sanctions. In his report, the special master found the majority of the defendant s conduct constituted gross negligence, exemplified by the defendant failing to turn over s it claimed had been destroyed, but in actuality resided on an external hard drive directly connected to the e- mail server and clearly labeled "backups." Further, the defendant's de facto in-house counsel willfully ran a scrubbing program on his laptop just hours before the special master arrived to inspect his files and no litigation hold or preservation plan was ever put in place. The special master recommended sanctions covering the plaintiff s additional expenses, to be paid directly by the defendant and not indemnified by an insurer. The defendant argued that such sanctions were too harsh given its relative lack of technical sophistication and the lack of prejudice to the plaintiff, and challenged the court s authority to sanction directly without the possibility of indemnification. Setting aside all of these objections, the court adopted the special master s recommendations and ordered the plaintiff to tabulate its costs stemming from the discovery misconduct for the purpose of assessing sanctions. Kermode v. Univ. of Miss. Med. Ctr., 2011 WL (S.D. Miss. July 1, 2011). In this wrongful termination litigation, the plaintiff sought default judgment for various discovery violations and an evidentiary hearing regarding the alleged spoliation of relevant s. Despite the discovery violations alleged by the plaintiff, including the failure to preserve and produce relevant s, the court noted that procedural defects and the Rule 37(e) safe harbor provision barred the imposition of sanctions as the s were deleted as part of a routine system. Turning to the request for an evidentiary hearing regarding alleged spoliation of relevant s, the court found that despite having nine months to develop the evidentiary record, the plaintiff had failed to present evidence the s actually existed, and that even if he had, did not sufficiently demonstrate the presence of bad faith. Finally, the court dismissed the plaintiff s belatedly proffered authenticity challenge of s produced in paper form, noting that the opportunity for such a motion had passed. Limone v. United States, 2011 WL (D. Mass. June 20, 2011). In this claim under the Federal Tort Claims Act, the plaintiffs sought attorney fees for the government's alleged bad faith discovery conduct after winning a substantial jury award at trial for their wrongful murder convictions resulting in thirty years of undeserved prison time. Reviewing the government's discovery conduct, the court found that over 7,000 documents were redacted to an "incomprehensible" extent due to the government's claim that they contained information which could reveal the identities of confidential informants. The court found that during the government's two-year-long discovery stonewalling effort, the FBI had not allowed the government lawyers handling the case to see the unredacted versions of the documents in question. Citing this behavior as a direct contradiction of the reasonable inquiry requirement under Fed.R.Civ P. 26(g), the court found the government's actions constituted bad faith. Finding the government's behavior warranted sanctions, the court scheduled a hearing to determine which costs were reasonably related to the bad faith conduct. Baez-Eliza v. Instituto Psicoterapeutico de Puerto Rico, 2011 WL (D. Puerto Rico June 16, 2011). In this suit under the Americans with Disabilities Act, the parties requested the court determine if attorney-client privilege applied to ten s sent between employees in the defendant corporation. The court had previously sanctioned both parties $500 for extensive abuses 210

211 that turned the discovery process "into an all-out war," which included the filing of over 25 motions and repeated orders by the court to cooperate. Despite the previous sanctions and court's insistence to resolve disputes amicably, the defendant continued to claim that all ten s were protected because they disclosed the fact that the defendant was consulting with its attorney. The court found the defendant's position showed "an ill-advised stubbornness" and "a poor understanding of the privilege's reach." Though the court did determine that some of the defendant's documents were privileged, others simply mentioned legal matters or representation but were devoid of legal content. In line with its threat to sanction further discovery misdeeds, the court sanctioned the defendant $1,000 for failing its duty of candor to the court. In an extended conclusion, the court admonished both parties for showing "reprehensible gamesmanship" instead of civility, urging responsible practitioners to adopt the latter. Victor Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv MJG (D. Md. June 15, 2011). In this ongoing intellectual property litigation, the court reviewed Magistrate Judge Grimm's order requiring the defendant to pay $1,049, in attorney fees and costs as a monetary sanction for its egregious spoliation. The defendant objected to the amount of the award on the grounds that it exceeded the standard set by the court because the cost tabulations included discovery conducted before the spoliation could affect the plaintiff. Rejecting the defendant's general objections that the sanctions included fees and costs completely unrelated to the spoliation, the court also noted that the defendant's bad behavior began before the first set of depositions and impacted the discovery process from that point forward, as Judge Grimm had previously concluded. Furthermore, the court found the plaintiff s counsel made a good faith effort to conservatively allocate the costs to the spoliation. Finding the recommended award was only for those fees and costs reasonably flowing from the defendants spoliation, the court adopted Judge Grimm's order and directed the defendants to pay the $571, balance of the sanction within 30 days. Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C MJP (W.D. Wash. June 8, 2011). In this intellectual property litigation, the defendants sought discovery sanctions in response to the plaintiff's motion for voluntary dismissal, alleging a persistent pattern of discovery-related misconduct. In response to the defendants production requests, the plaintiff initially pointed the defendants to 360 boxes of unsorted records. Even though the plaintiff certified that its production was complete, the plaintiff's counsel ed multiple addendums to discovery, many times requiring the defendants to scramble to meet court deadlines or necessitating extensions. Although the plaintiff certified that none of its records existed in electronic form, it eventually turned over some of the demanded ESI, claiming the accessibility of the database was unknown because "no one bothered to ask" the company s IT consultant (plaintiff's counsel also put the CFO and CEO in charge of discovery responsibilities). Citing this litany of discovery mishaps, the court found sanctions appropriate and awarded the plaintiff over $137,000. Further, because the plaintiff's counsel did not abide by Fed.R.Civ.P. 26(g)(1), which requires lawyers to make a "reasonable inquiry" before certifying discovery responses, the court ordered him to share the burden of the sanctions. DL v. District of Columbia, No (RCL) (D.D.C. May 9, 2011). In this class action dispute concerning free public education under the Individuals with Disabilities and Education Act, the defendant filed a motion to reconsider the grant of the plaintiff's motion to compel production and the court's determination that privilege was waived for all s yet to be produced. On the day the court was scheduled to issue its opinion, the plaintiffs counsel informed the court that the defendants had produced thousands of s days before trial and were continuing to "document dump" after trial concluded. The defense counsel claimed the District was understaffed, committed supplemental searches that yielded tens of thousands of additional s, discovery was 211

212 voluminous and there were not "enough bodies" to complete the process before trial. Denying the defendants' motion, the court cited the "repeated, flagrant, and unrepentant failures to comply with Court orders" and "discovery abuse so extreme as to be literally unheard of in this Court." The court also repeatedly noted the defendants' failure to adhere to the discovery framework provided by the Federal Rules of Civil Procedure and advised the defendants to invest time spent "anklebiting the plaintiffs" into shaping up its own discovery conduct. Surowiec v. Capital Title Agency, Inc., 2011 WL (D. Ariz. May 4, 2011). In this breach of contract, inter alia, litigation, the plaintiff requested sanctions, arguing the defendants spoliated evidence and misrepresented the extent of its discovery efforts. In response, the defendants argued a letter it received threatening future litigation did not trigger a duty to preserve because the letter did not specifically name the plaintiff. Clarifying the duty is owed to the court rather than the party s potential adversary, the court found the letter clearly encompassed a threat from homeowners such as the plaintiff, thus triggering the duty to preserve. Although the court declined to apply the Pension Committee culpability standard, it nonetheless found the defendants in-house counsel s failure to issue a litigation hold, suspend routine document destruction and capture evidence, constituted gross negligence. Reviewing the alleged discovery abuses, the court determined the defendant used unreasonably narrow and literal search terms that initially succeeded in returning zero results, and found its boilerplate objections to be inexcusable. Concluding the defendants acted willfully, the court imposed an adverse inference instruction and issued monetary sanctions to reimburse the plaintiff s expenses incurred as a result of the misconduct and to pay reasonable attorney fees. Lee v. Max Int'l, LLC, 2011 WL (10th Cir. May 3, 2011). In this contract dispute, the plaintiffs appealed an order dismissing the case as a sanction for discovery misconduct, arguing they complied with the second production order and contending the district court failed to sufficiently explain its reasons for dismissal. Rejecting both arguments, the court identified at least one violation of the second order, found the plaintiffs falsely declared their production was complete and concluded there was no abuse of discretion by the district court which it noted should be given wide deference in imposing discovery sanctions. Remarking that "there is such a thing as discovery karma," the court warned that "[d]iscovery misconduct often may be seen as tactically advantageous at first. But just as our good and bad deeds eventually tend to catch up with us, so do discovery machinations." In affirming the dismissal, the court held, a "party's thrice repeated failure to produce materials that have always been and remain within its control is strong evidence of willfulness and bad faith, and in any event is easily fault enough... to warrant dismissal or default judgment." McCargo v. Texas Roadhouse, Inc., 2011 WL (D. Colo. May 2, 2011). In this racial discrimination litigation, the plaintiff sought spoliation sanctions based on the automatic destruction of surveillance video evidence, which included footage from multiple work shifts that allegedly showed discrimination and a persistently hostile work environment. Arguing it could not have reasonably anticipated litigation concerning events other than one particular incident, the defendant claimed its duty to preserve evidence was limited to video of that single work shift. Disagreeing, the court found the duty to preserve triggered when the plaintiff filed a formal complaint, putting the defendant on notice to preserve all existing and future video that included the plaintiff. Noting the defendant s conduct went well beyond corporate arrogance, the court found the plaintiff was prejudiced by the recordings which the defendant willfully and in bad faith chose not to preserve. Accordingly, the court issued both mandatory and permissive adverse inference instructions as well as attorney fees relating to the spoliation motion. 212

213 Point Blank Solutions, Inc. v. Toyobo Am., Inc., 2011 WL (S.D. Fla. Apr. 5, 2011). In this products liability litigation, the plaintiffs sought ESI spoliation sanctions contending the defendants were under a general duty to preserve due to a separate government investigation and other reasonably foreseeable industry-wide litigation. Denying they acted in bad faith or that any grounds for sanctions existed, the defendants claimed they had no inkling the plaintiffs would pursue litigation and further argued there was no jurisdictional support for an industry-wide anticipation of litigation theory. Agreeing with the defendants, the court found the preservation duty was owed only to other parties and refused to "establish some type of free-floating or shifting duty" which they could latch onto. Further, the court asserted it would not simply assume destruction based on the number of s already in the plaintiffs' possession and noted that the plaintiffs had virtually all of the documents in their possession via other means. Finding no evidence of bad faith a requirement for the imposition of an adverse inference in the Eleventh Circuit the court held there was no basis for sanctions and denied the motion. Green v. Blitz U.S.A., Inc., 2011 WL (E.D. Tex. Mar. 1, 2011). In this products liability litigation, the plaintiff sought to re-open the case and requested sanctions alleging the defendant systematically destroyed evidence, failed to produce relevant documents and committed other discovery violations in bad faith. The plaintiff's counsel uncovered the unproduced documents nearly a year after trial while conducting discovery in a related matter. Analyzing the dispute, the court determined the s that were not produced, were extremely valuable and prejudiced the plaintiff. The court found the defendant's discovery efforts were unreasonable, as the defendant placed a single employee who was admittedly "as computer literate illiterate as they get" in charge. Moreover, the defendant did not conduct a search of electronic data, failed to institute a litigation hold, instructed employees numerous times to routinely delete information and rotated its backup tapes repeatedly, which resulted in permanently deleting data. Although the court declined to re-open the case, it ordered the defendant to pay $250,000 in civil contempt sanctions. Additionally, the court imposed a "purging" sanction of $500,000, extinguishable if the defendant furnished a copy of the order to every plaintiff in every lawsuit proceeding against it for the past two years. Finally, the court ordered the defendant to file a copy of the order with its first pleading or filing in all new lawsuits for the next five years. Rosenthal Collins Grp., LLC v. Trading Tech. Int'l Inc., 2011 WL (N.D. Ill. Feb. 23, 2011). In this patent litigation, the defendant sought monetary sanctions and a default judgment claiming significant and sustained discovery misconduct. After an admission that the plaintiff's consultant and expert witness had fabricated critical evidence, the trial court granted the defendant s motion for attorney fees and additional discovery. However, the plaintiff did not comply with the discovery order for another year, until after two additional court orders by two separate judges. Although the plaintiff adamantly denied the allegations that virtually every piece of media ordered to be produced was wiped, altered or destroyed, the court determined the defendant s contentions were supported by forensic analysis. Finding that the last modified dates for critical evidence were backdated and otherwise modified, and that seven zip disks, three USB thumb drives and two computers had been wiped or reformatted in "bad faith and with willful disregard for the rules of discovery" and court orders, the court imposed a default judgment, dismissed the plaintiff's complaint with prejudice and ordered $1,000,000 in sanctions for its egregious conduct. The court also ordered the plaintiff's counsel to pay all costs and attorney fees for their part in the misconduct. Fed. Trade Comm'n v. First Universal Lending, LLC, 2011 WL (S.D. Fla. Feb. 17, 2011). In this Federal Trade Commission (FTC) investigation, the defendants sought to enjoin the prosecution, alleging they were unable to mount a defense due to the FTC's bad faith spoliation of 213

214 the defendants' computer systems. After seizing the defendants' business, the FTC employed a third party to forensically image computers for use in its prosecution; however, the defendants did not inform the FTC about numerous servers. Believing all computers were imaged, the courtappointed receiver ordered all computers owned by the defendants to be wiped before being sold. Rejecting the defendants' argument that this loss was catastrophic to the case, the court determined that relevant information was available in hard copy and was stored via a third party cloud computing service. In denying the bad faith spoliation claim, the court also noted that the destruction was carried out by the defendants themselves and that the FTC did not have an obligation to preserve the evidence. Although acknowledging the loss presented additional challenges in mounting a case and defense, the court found the obstacles were not insurmountable and denied the motion. Philips Elecs. N. Am. Corp. v. BC Tech., 2011 WL (D. Utah Feb. 16, 2011). In this intellectual property litigation, the defendant objected to the magistrate judge's recommendation that the court strike the defendant's answer, dismiss its counterclaims, enter a default judgment and refer the case to the U.S. Attorney's Office for investigation and criminal prosecution. Although conceding that it engaged in discovery violations, the defendant argued it merely followed its counsel's advice, was not responsible for the actions of its employees and had largely remedied any prejudice arising from the spoliation. Adopting the recommendation in full, the court found the defendant's destruction of at least 17,800 relevant documents, attempted cover-up of electronic deletions after a third court order and misrepresentations while under oath were prejudicial and interfered with the judicial process. In addition, the court determined the company was liable for the actions of the employees largely upper management and executives who destroyed evidence as a "company cannot act or have a mental state by itself." Finally, the court held both attorney fees and terminating sanctions were appropriate given the egregious nature of the discovery abuses and upheld the referral to the U.S. Attorney's Office for perjury investigation. Victor Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv MJG (D. Md. Jan. 24, 2011). In this ongoing intellectual property litigation, the parties disputed the amount of reasonable attorneys fees and costs to be paid by the defendants as a sanction for intentional spoliation of evidence and other egregious misconduct during discovery. The plaintiff sought $936, in attorneys fees and $148, in costs, while the defendants previously were ordered to pay $337, Noting that willful spoliation taints the entire discovery and motions practice, the court refused the defendants shotgun approach to narrow the costs sought. Concluding that $901,553 was the reasonable amount of the plaintiff s attorneys fees, the court found that the time and labor required to address Defendants spoliation was commensurate with the magnitude of the spoliation itself. The court also awarded the proposed costs, including the expense of hiring a computer forensic consultant. In total, the court ordered the defendants to pay $1,049,850.04, with the balance of $712, due in 30 days. Morris v. Metals USA, 2011 WL (D.S.C. Jan. 11, 2011). In this personal injury litigation, the plaintiff moved for sanctions including the exclusion of a witness and videotape from evidence. Alleging a trial by ambush, the plaintiff argued the defendant failed to disclose the identity of a witness (an investigator) and corresponding surveillance videotape until six months after receiving the interrogatories and requests for production, and roughly one week prior to the discovery deadline. The defendant argued production was not required as it intended to use the evidence solely for impeachment purposes. Analyzing the evidence, the court found the tape could also serve a substantive purpose as the video showed the plaintiff performing normal daily activities and might contradict or diminish the plaintiff s quality of life claims. Despite a lack of bad faith, the defendant s violation of Fed.R.Civ.P. 26(a) and (e) was not substantially justified nor harmless ; 214

215 thus, the court prohibited the use of the investigator as a witness and the videotape as evidence at trial, but declined to impose further sanctions. Rattray v. Woodbury County, Iowa, 2010 WL (N.D. Iowa Dec. 27, 2010). In this Fourth Amendment unreasonable strip search case, the plaintiff sought sanctions pertaining to the defendants destruction of video evidence. The plaintiff argued her threats of litigation during the incident, her attorney s letter complaining about her treatment and a court order to preserve the video recording all put the police department on notice of imminent litigation such that they should have preserved the entire recording. Objecting, the defendants asserted that preserving only part of the recording complied with routine procedure, the plaintiff failed to demonstrate prejudice from the loss, the uncopied segment would have been automatically overwritten by the time the defendants received notice to preserve it and they did not act in bad faith. Finding sufficient evidence to constitute a fact question, the court ordered the question of bad faith be submitted to the jury and included a permissive adverse inference instruction. Union Pump Co. v. Centrifugal Tech. Inc., 2010 WL (C.A.5 (La.) Dec. 16, 2010). In this intellectual property dispute, the plaintiff appealed the district court s refusal to award attorney s fees as a sanction for the defendants spoliation of evidence. Responding to the plaintiff s pre-trial request for sanctions, the district court issued a permissive adverse inference instruction but declined to rule further on sanctions until after the jury verdict. After the jury returned a verdict in favor of the plaintiff in the amount of $2,125,559, the plaintiff requested all attorney s fees and costs totaling close to $1 million, which the district court ultimately declined to award. On appeal, the court remarked that intentional spoliation threatens the sanctity and spirit of the judicial process, but found no abuse of discretion in declining to issue sanctions. The court also noted the plaintiff failed to renew its request for attorney s fees as a spoliation sanction and affirmed the district court s judgment. Trickey v. Kaman Indus. Techs. Corp., 2010 WL (E.D. Mo. Dec. 6, 2010). In this employment discrimination litigation, the plaintiff sought production of all relevant electronic communications, alleging the defendants failed to adequately preserve electronic data in anticipation of litigation. Employees of the defendants manually selected and preserved documents and s contained in the live database or archive that they deemed potentially relevant instead of preserving a mirror image of the server and relevant data sets. Although concerned by the defendants failure to create a mirror image, the court declined to issue sanctions as the plaintiff made no spoliation claims and the defendants made considerable remedial efforts by hiring an independent forensic computer expert to examine the electronic data for relevant information. Based on this retention of the forensic IT consultant and efforts to search existing data, the court agreed that the requested documents no longer existed and denied the motion to compel unless the plaintiff could identify now-existing databases that were not previously searched. In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. Nov. 16, 2010). In this securities litigation, the plaintiffs appealed a summary judgment order entered for the defendants, contesting the adequacy of adverse inferences given regarding the defendants willful failure to preserve the CEO s s and taped discussions. The plaintiffs argued the adverse inferences should have been sufficient to defeat a challenge to the insufficiency of their prima facie case, instead of merely that the s and tapes would have proved the defendants knowledge of any material facts the plaintiffs established. While more than 2.1 million documents were produced during discovery, the court found that the plaintiffs were unable to glean any material issues of fact from these documents or from depositions and written discovery, and that the plaintiffs problem resided in the dearth of admissible evidence to demonstrate fraud. Accordingly, the court found the sanction was carefully fashioned with no abuse of discretion to deny the defendants any benefit 215

216 from their preservation failures. Further asserting that [i]t behooves litigants, particularly in a case with a record of this magnitude, to resist the temptation to treat judges as if they were pigs sniffing for truffles, the court ultimately affirmed summary judgment for the defendants. Victor Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv MJG (D. Md. Nov. 1, 2010). In this intellectual property litigation, the defendants appealed Magistrate Judge Grimm s order from September 9, 2010 holding the defendant President in contempt of court and ordering a two-year imprisonment unless and until attorney fees and costs were paid. Agreeing with Judge Grimm s recommendation, the court adopted the decision except as to the order for imprisonment. Declining to address the possibility of referral for criminal prosecution at this time, the court found it inappropriate to order incarceration for the possible future failure to comply with an as-yetundetermined payment obligation. The court ordered the defendants to pay $337, by the end of the week, constituting the minimum amount of sanctions imposed, and referred to Judge Grimm the matter of determining any additional amount payable. In the event this payment was not made, the defendants would be required to appear in court to show cause why they should not be held in civil contempt for their failure to comply with the order, and additional failures may permit a warrant for the defendant President s arrest. The Sunrider Corp. v. Bountiful Biotech Corp., 2010 WL (C.D. Cal. Oct. 8, 2010). In this intellectual property litigation, the plaintiffs renewed their motion for terminating sanctions, alleging the defendant repeatedly perjured himself in an effort to thwart discovery, failed to comply with self-executing discovery obligations imposed by the federal rules and failed to comply with discovery orders. Analyzing the appropriateness of terminating sanctions, the court found the defendant acted with disingenuousness, dishonesty, disregard of discovery obligations, and disobedience of court orders. Further, the court found prejudice to the plaintiff in that the defendant willfully and repeatedly gave perjurious testimony and other non-credible sworn statements, failed to produce (or belatedly and incompletely produced) responsive documents, breached his duty to supplement discovery responses and failed to comply with a discovery order requiring him to provide information relevant to evidence spoliation. In addition, the caretaker entrusted with the defendant s personal and business affairs destroyed and failed to preserve documents, leaving no method to determine what documents were destroyed. Finding that the responsive documents were within the defendant s possession, custody or control, the court determined the defendant breached his duty to preserve and recommended the motion for terminating sanctions be granted, the defendant s answer be stricken and default judgment be entered against the defendant. Voom HD Holdings LLC v. EchoStar Satellite LLC, No /08 (N.Y.Sup. Nov. 3, 2010). In this breach of contract action, the plaintiff sought spoliation sanctions alleging the defendant destroyed s. The defendant relied upon its employees to make relevancy and responsiveness determinations, and argued it was unnecessary to suspend the company s automatic document disposal process as it was up to the custodians to preserve. Addressing the duty to preserve, the court dismissed the defendant s argument that the parties settlement efforts precluded the preservation duty, noting that argument would allow parties to freely destroy documents and s, simply by faking a willingness to engage in settlement negotiations. The court also noted that the defendant was previously sanctioned for spoliation in a separate matter, Broccoli v. EchoStar Communications Corp. in Finding the conduct in the instant action even more egregious than in Broccoli, the court held the defendant acted in bad faith in destroying relevant s and engaged in the type of offensive conduct that cannot be tolerated by the court. As such, the court imposed an adverse inference instruction and awarded attorneys fees and costs. In support of its findings, the court noted that the defendant is a large public corporation 216

217 with ample financial resources to institute and enforce a proper litigation hold and referenced the fact that the defendant hired a new in-house lawyer following the Broccoli decision primarily to address these issues. Alford v. Rents, 2010 WL (S.D. Ill. Oct. 20, 2010). In this employment discrimination litigation, the court reviewed the magistrate judge s recommendation advocating sanctions against both defendants counsels individually for discovery misconduct. Upon review of the record, the court found substantial and repeated violations of both the Federal Rules of Civil Procedure and the Illinois Rules of Professional Conduct based on the filing of over 14 discovery-related motions, incessant accusation-laced, uncivil correspondence, the need for judicial supervision of depositions and the appointment of a special master to decide discovery disputes. In light of counsels scorched-earth approach to discovery in which the attorneys embarked upon a course entailing a conscious effort to maximize litigation and to make certain [it] was as time-consuming, difficult, unpleasant, and expensive as possible, the court adopted the magistrate judge s recommendation and held the two attorneys personally liable for sanctions in the amount of $3,750 each, to be paid without reimbursement from the law firms or clients. Leor Exploration & Prod., LLC v. Aguiar, 2010 WL (S.D. Fla. Sept. 28, 2010). In this consolidated commercial litigation, the plaintiffs sought sanctions and contempt, alleging the defendant violated court orders against witness tampering and hacked into the account of a principal plaintiff to gain a litigation advantage. The plaintiff charged that the account contained over 45,000 s, including hundreds of attorney-client privileged communications, a compilation of which the defendant forwarded to his counsel and others. Introducing numerous factual, procedural and legal arguments, the defendant contended that the hacking was spoofed, the plaintiff tried to goad the defendant by filing frivolous lawsuits and, that there is nothing wrong with wanting to win [the] lawsuit. Disturbed by the defendant s win-at-all-costs mentality, the court found the defendant gained an unfair advantage by obtaining unauthorized access to the e- mail and acted in bad faith, despite having a mental illness. Thus, the court affirmed and adopted the magistrate s report and recommendation, striking the defendant s pleadings at an alleged value of $1 billion. Satisfied that this sanction was both necessary and sufficient, the court declined to award attorneys fees and costs. Whited v. Motorists Mut. Ins. Co., 2010 WL (E.D. Mich. Sept. 28, 2010). In this litigation involving claims for insurance benefits, the defendants moved for dismissal of the plaintiff s claims and for summary judgment on multiple counterclaims alleging, inter alia, fraud and unjust enrichment. During the acrimonious discovery process, substantial allegations that some documents were falsified led the court to order the plaintiff to surrender all computers for forensic examination. Although the court warned the plaintiff that her conduct was perilously close to willfulness and bad faith and forbade anyone from using the computers, the forensic examination revealed evidence of extensive tampering including the replacement of a hard drive, deletion of 1,300 files and backdating of dozens of documents. Upon review of this evidence, the court found the plaintiff s inherently suspect explanations strained credulity and undermined her claims of good faith. Noting that the intentional deletion of files alone was sufficient to support a finding of willfulness and bad faith, the court found this case justified the extreme sanctions and granted dismissal with prejudice. Piccone v. Webster, 2010 WL (W.D.N.Y. Sept. 3, 2010). In this employment discrimination litigation, the parties cross-moved for spoliation sanctions, and the defendants sought to compel production of certain electronic communications and forensic examination of the plaintiff s personal computer and other electronic data storage devices. The plaintiff argued sanctions were warranted because the defendants failed to include in their production 217

218 approximately 200 s that were allegedly destroyed when the defendants computer was cleaned. Contending they produced all responsive s in their possession, the defendants countered that the plaintiff cherry picked her production such that forensic examination was necessary to ensure complete production. Finding that both parties failed to establish the first element of spoliation by not providing evidence that any relevant s were destroyed after the duty to preserve arose, the court denied sanctions. However, the court found the defendants were entitled to explore through depositions an explanation for the discrepancies in the plaintiff s production. In regard to the forensic examination, the court ordered the defendants to pay for mirror imaging of the plaintiff s hard drive, and directed the plaintiff to turn the mirror image and certain external disks over to her attorney for safekeeping. Maggette v. BL Dev. Corp., 2010 WL (N.D. Miss. Sept. 2, 2010). In this wrongful death litigation, the defendants sought to avoid dispositive sanctions for discovery misconduct by arguing mere negligence. Finding the defendants continually stonewalled discovery in bad faith over a period of many months, the court noted the defendants obstructed the process and were willing to write off minor discovery sanctions. The court determined the defendants undertook sham efforts as they could not describe the databases searched, the search terms, methods or parameters used or provide any expert information confirming that there are no documents, electronically stored information or other [responsive] information. Nor could they explain numerous production discrepancies or alterations and deletions of documents. The court found it quite difficult to accept that a multi-billion dollar corporation facing very high-stakes litigation was unable for close to five years to uncover its own documents at its own facilities when the special master located the information in five to seven minutes. Finding the defendants engaged in lies and misconduct despite escalating warnings, the court imposed dispositive sanctions. Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 2010 WL (S.D. Fla. Aug. 23, 2010). In this breach of contract litigation, the plaintiff sought sanctions based on the defendant's alleged spoliation of s and other documents. While the court agreed the defendant violated its duty to preserve by failing to timely issue a litigation hold, it found the defendant's duty arose over one year later than alleged by the plaintiff. Although a number of s and attachments were negligently destroyed during this time under a routine document destruction policy, the court underscored that "[n]egligence is not tantamount to bad faith," which is required for a default judgment or adverse inference instruction. Furthermore, the court found the plaintiff obtained sufficient evidence from deposition testimony and documents received from third parties, and thereby failed to demonstrate that the spoliated evidence was crucial to establishing its claim. Citing the plaintiff's failure to satisfy the necessary elements, and noting that monetary sanctions and targeted discovery had previously been awarded, the court denied the motion for additional sanctions. Pitney Bowes Gov't Solutions, Inc. v. United States, 2010 WL (Fed. Cl. Aug. 19, 2010). In this government contract award protest, the plaintiff sought sanctions alleging the contracting officer for the Department of Justice spoliated evidence by inappropriately ordering the destruction of the evaluation data used in the bidding process. Although the information was successfully recovered from backup tapes, the plaintiff maintained the government deserved sanctions for the order given to destroy the documents. The plaintiff also challenged the veracity of the recovered data, claiming that an analysis of the metadata revealed the documents were not the same documents the contracting officer destroyed. Denying the request for sanctions, the court held there is no question of spoliation when "backup tapes have been retained and can be provided in discovery," and further rejected the challenge to the documents' veracity as meritless, finding the discrepancy in authorship was accounted for by the bidding review process. 218

219 Harkabi v. Sandisk Corp., 2010 WL (S.D.N.Y. Aug. 23, 2010). In this breach of contract litigation, the plaintiffs sought sanctions, alleging the defendant failed to produce data contained on laptops the plaintiffs used while employed with the defendant company along with some of the plaintiffs' corporate . The defendant argued it lost the laptop data despite reasonable preservation steps, but agreed to produce the missing s, which were ultimately located. Following a thorough discussion of culpability standards, the court found the defendant negligent based on "a cascade of errors" (including deficiencies in its native production and laptop spoliation) "which aggregated to a significant discovery failure." The court noted that the defendant, "a global business that champions itself a leader in electronic data storage," must be mortified by its claim of innocent mistake. Finding terminating sanctions drastic, the court instead awarded $150,000 in attorneys' fees to compensate the plaintiffs "for their 'David-and-Goliath-like' struggle for electronic discovery," and also granted an adverse inference instruction. Nycomed U.S. Inc., v. Glenmark Generics LTD., 2010 WL (E.D.N.Y. Aug. 11, 2010). In this pharmaceuticals patent litigation, the plaintiff moved to strike portions of the defendants' pleadings due to its unjustified withholding of relevant evidence and willful failure to search two important and obvious repositories for responsive ESI. The defendants argued its withholding was justified because the documents had already been produced by a third party, and claimed the ESI repositories had been simply "overlooked." Rejecting the defendants' excuses, the court determined that the underinclusive nature of the defendants' discovery efforts and searches was willful not an inadvertent omission. Based on the defendants' "willful dereliction of its discovery duties" and its status as a "substantial multinational corporation," the court found that monetary sanctions in the amount of $100,000 to the plaintiff and $25,000 to the court clerk were justifiable. The court denied more severe sanctions based on the level of prejudice suffered by the plaintiff and declined to award attorneys' fees noting the "resolution of these matters is long overdue." Meridian Fin. Advisors LTD v. Pence, 2010 WL (S.D. Ind. July 12, 2010). In this business litigation, the defendants sought dismissal sanctions alleging one of the plaintiffs engaged in deceptive discovery practices, which included withholding 250,000 secret s obtained from the defendants hard drives, and working with a co-defendant and a former employee of the defendants to gather privileged information. The plaintiff argued it did not disclose the s existence until formal requests were made to lock the Defendants into sworn testimony and that adequate disclosures were made via the indications it possessed s, documents and corporate minutes. Dismissing these arguments, the court determined the plaintiff s actions violated Fed.R.Civ.P. 26. The court also held the plaintiff violated attorney-client privilege by failing to disclose to the defendants that it had seen potentially privileged s and accessed personal communications. Finding dismissal an inappropriate sanction given the lack of prejudice suffered by the defendants, the court ordered the plaintiff to pay all attorneys fees and costs and precluded the plaintiff s use of the ESI. Phillip M. Adams & Assoc., L.L.C. v. Winbond Elec. Corp., 2010 WL (D. Utah July 21, 2010). Previously in this intellectual property litigation, the magistrate judge granted the plaintiff s motion for sanctions in part and ordered both parties to produce documents for a determination of the degree of prejudice to the plaintiff. Examining the plaintiff s evidence of prejudice, the court found that the produced materials did not prove the defendant destroyed documents noting [t]he fact that evidence is not present does not mean it was spoliated. Moving to the defendant, who failed to preserve and produce its original source code as ordered, the court found this failure again highlighted the lack of an information retention policy. The court nevertheless found the evidentiary value of the developer s comments from the original source code to be mere speculation not the proverbial smoking gun as claimed by the plaintiff. Declining to issue terminating sanctions, the 219

220 court opted to allow the jury to consider the plaintiff s arguments regarding why the original source code should be available and draw their inferences. Aliki Foods, LLC v. Otter Valley Foods, Inc., 2010 WL (D. Conn. July 7, 2010). In this breach of contract and implied warranty litigation, the defendant sought dismissal, and the plaintiff moved to vacate prior orders to preserve and produce discovery-related electronic materials. Responding to allegations of stonewalling and spoliation of ESI, the plaintiff claimed that its principal s hard drive failed (suspiciously coinciding with the court s order to produce it). Moreover, months after the court ordered the drive to be forensically imaged, the plaintiff signed it over to a non-party its principal s new employer without ever attempting to comply with the order. Having lost patience, the court found that the plaintiff s flagrant defiance of numerous court orders and warnings, intentional destruction of computers and hard drives, and blatant disregard of discovery obligations, failed every factor of the Second Circuit s test. This bad faith conduct resulted in a tremendous waste of resources and left dismissal as the only viable sanction. Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL (D.Colo. June 15, 2010). In this discovery dispute, the defendants objected to the special master's ruling, arguing the sanctions imposed (jury instruction and expenses) were not severe enough to address the prejudice caused by the plaintiff s willful spoliation of approximately 43 hard drives. The defendants requested the entirety of fees and costs associated with litigating the sanctions motion and sought dismissal. Addressing the dismissal request, the court found that the mitigation of actual prejudice through the jury instruction and the plaintiff's otherwise responsive production warranted a lesser penalty. The court also noted there was no evidence the plaintiff acted in a "premeditated intentional manner, but rather was merely negligent. Turning to the defendants' request for $130,000 in expenses, the court noted that the defendants spent "too much time and money... on this matter." However, in light of the nature of the wrongful conduct and the importance of the evidence destroyed, the court awarded the defendants $89, in attorneys' fees and costs. Jones v. Bremen High Sch. Dist. 228, 2010 WL (N.D.Ill. May 25, 2010). In this employment discrimination litigation, the plaintiff sought sanctions alleging the defendant failed to preserve relevant documents and intentionally concealed its document retention policy to hide its lack of compliance. Detailing the defendant s preservation efforts, the court found it undisputed that the defendant failed to place a litigation hold in effect when it learned the plaintiff filed charges in October Instead, the defendant directed just three employees whose conduct was in question in the lawsuit to search through their and cull out relevant documents without supervision of outside counsel. Notably, all employees in the district could permanently delete e- mails by double-deleting them from their computers, and the s would then be automatically erased from the backup system in thirty days. Despite finding that the defendant clearly breached its duty to preserve relevant documents, the court determined the actions were not willful and declined to impose an adverse inference instruction. However, the court found the defendant s behavior grossly negligent, and precluded the defendant from arguing that an absence of discriminatory statements evidenced that no such statements were made and allowed for additional depositions at cost to the defendant. In re A & M Florida Props. II, 2010 WL (Bkrtcy.S.D.N.Y. Apr. 7, 2010). In this bankruptcy litigation, the defendant sought sanctions alleging the plaintiffs and their counsel intentionally obstructed the discovery process by causing misunderstandings and by delaying the production of relevant s, which resulted in needless costs and frustrations. The plaintiffs eventually produced more than 9,500 s that were stored in the company archive system following two forensic searches. Based on the absence of intentional destruction and the fact that the sought- 220

221 after s were ultimately produced, the court noted that dismissal or an adverse inference would be unjustly harsh. However, the court found that the plaintiffs counsel did not understand the technical depths to which electronic discovery can sometimes go and noted that counsel has an obligation to search for sources of information to understand where data is stored. According to the court, if the plaintiffs counsel would have spoken with key figures at the company regarding the computer and archiving systems in place, the forensic search and subsequent motions would have been unnecessary. As such, the court found monetary sanctions to be appropriate. Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (S.D.Cal. Apr. 2, 2010). In this patent infringement litigation, the plaintiff was sanctioned $8.5 million for egregious discovery misconduct. Six of the plaintiff s attorneys, who were personally sanctioned for assisting in the plaintiff s withholding of critical information and failure to conduct reasonable inquiries into the plaintiff s productions, filed objections to the sanctions order. The court determined the fundamental problem was an incredible breakdown in communication that permeated all of the relationships. In addition, outside counsel failed to meet with appropriate employees of the plaintiff, understand how the plaintiff s computer system was organized and take supervisory responsibility to verify necessary discovery was conducted. Citing Fed.R.Civ.P. 26, the court determined that, despite the massive discovery failure and number of poor decisions, sanctions against the individual attorneys for discovery failures were unwarranted as the attorneys did not act in bad faith. The court also determined the attorneys made repeated efforts to verify accuracy of the plaintiff s discovery responses and noted the lack of candor demonstrated by some of the plaintiff s employees. Edelen v. Campbell Soup Co., 2010 WL (N.D.Ga. Mar. 2, 2010). In this race and gender discrimination litigation, the plaintiff filed several objections to a magistrate judge s discovery order which denied the plaintiff s motion for sanctions and directed the plaintiff pay the defendants attorneys fees associated with the defendants previous motion to narrow the scope of ESI discovery requests. The plaintiff argued for sanctions alleging the defendants excessively designated documents as confidential, voluntarily produced privileged documents and failed to meet and confer with the plaintiff. Regarding the plaintiff s ESI discovery request, the defendants claimed the plaintiff s proposal spanned a three year period and would produce 474,456 documents for one year alone since it encompassed 50 custodians and more than 55 search terms. Adopting the magistrate s discovery recommendations in full, the court dismissed the plaintiff s sanctions claims and noted the plaintiff repeatedly failed to comply with court s orders to narrow the scope of the ESI production requests. Thus, the court found the magistrate s recommendation, which awarded attorneys fees based on the plaintiff s noncompliant behavior in the discovery process, to be reasonable. In re Hecker, 2010 WL (Bkrtcy.D.Minn. Feb. 23, 2010). In this ancillary bankruptcy proceeding, the plaintiff requested default judgment sanctions, alleging the defendant repeatedly failed to produce privilege logs and responsive ESI, and engaged in offensive discovery despite court orders prohibiting those actions. The defendant argued he was unable to produce large amounts of the requested ESI since the documents were located on his computers and servers that were in government custody. First, the court noted that the majority of information requested remained in the defendant s possession, since the government made forensic images of the data. Next, the court detailed the shocking behavior of the defendant and his counsel throughout the discovery process, which included belated and incomplete productions, violation of court orders, and delivery of an external hard drive containing 1.1 million scrambled files and folders. Based on this behavior, the court determined the defendant acted in bad faith and willfully abused the discovery process. Due to the court s certainty that no court order would secure the defendant s 221

222 cooperation, the plaintiff s motion for a default judgment sanction was granted and $83,070,987 of the plaintiff s judgment against the defendant was not dischargeable. Lawson v. Sun Microsystems, Inc., 2010 WL (S.D.Ind. Feb. 8, 2010). In this discovery dispute, the plaintiff s former counsel (two attorneys from a law firm) objected to the magistrate judge s recommendation that they be sanctioned $13,625 for failure to read s from the plaintiff that divulged discovery misconduct, claiming no bad faith or willful misconduct occurred. During review, the plaintiff accessed password-protected files produced by the defendant and sent s to counsel referencing these actions. Recognizing the attorneys failure to read or react to the plaintiff s s and adequately supervise the plaintiff s behavior during the discovery phase amounted to carelessness, the court nonetheless concluded careless conduct does not equate to wanton conduct and found the recommendation for sanctions against the plaintiff s counsel unsupported. The court further concluded the defendant was not harmed as a result of the plaintiff s actions, since the password-protected documents contained information that could have been obtained through other discovery means. Cherrington Asia Ltd. v. A & L Underground, Inc., 2010 WL (D.Kan. Jan. 8, 2010). In this discovery dispute, the plaintiffs sought monetary sanctions for costs incurred as a result of the defendants alleged discovery violations, which included a document dump of the computer hard drive, and a failure to adequately prepare witnesses and produce requested financial records. The defendants argued that the computer hard drive was produced in the format maintained in the normal course of business and that, upon court instruction, a search engine was loaded to allow the plaintiffs to search the hard drive. Despite finding the defendants cooperation efforts unacceptable, the court denied the plaintiffs motion in relation to the document dump as untimely since the plaintiffs were aware of the defendants actions fifteen months prior to filing the motion. However, the court found the plaintiffs arguments regarding the other violations compelling and awarded $26, in costs. Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 WL (M.D.Fla. Jan. 5, 2010). In this ongoing insurance litigation, the district court considered the defendant s motion for sanctions and reviewed the magistrate judge s previous recommendation of dismissal sanctions and reimbursement of costs. See Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL (M.D. Fla. Aug. 3, 2009). The plaintiffs claimed they were unaware of an automatic function of the business s computerized accounts management system that archived records after six months. Citing the plaintiffs duty of preservation, failure to consult its software provider to attempt to retrieve the archived documents, and the minimal effort and expense required for retrieval, the court denied the plaintiffs request to be allowed to cure the production defect without sanctions. The court also noted the court orders were clear, unambiguous and frequent and that the plaintiffs willful, bad faith actions evidenced a pattern of inexcusable disregard for the authority of [the] court. Thus, the court found dismissal of the claims arising from or related to the documents appropriate and ordered the plaintiffs to pay the defendant $75,000 in expenses and costs. TR Investors, LLC v. Genger, 2009 WL (Del. Ch. Dec. 9, 2009). In this stockholders litigation, the plaintiffs sought default judgment sanctions, citing the defendant's destruction of electronic evidence in violation of a court order. The plaintiffs asserted that, following review and encryption of electronic evidence by a third-party firm, the defendant used wiping software to permanently delete temporary files in the unallocated space not reviewed by the neutral party for relevance. The defendant, an "international man of mystery" who performed sensitive tasks for the Israeli government and was concerned about the confidentiality of personal documents, claimed that he believed the wiping software only deleted duplicate copies. Finding the use of wiping software to be a clear violation of the unambiguous court order, the court determined sanctions 222

223 were appropriate. The court declined to impose a default judgment and held the defendant in contempt, ordering him to pay $750,000 in attorneys' fees and costs. The court also ordered production of documents previously subject to a claim of privilege, elevated the defendant's required burden of persuasion on any counterclaims or defenses, and prohibited the defendant from prevailing on any material matter based solely on his uncorroborated testimony. Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009). In this personal injury action, the Supreme Court of Washington reviewed the Court of Appeals' reversal of the trial court's imposition of a default judgment sanction on the defendant corporation. Among the defendant's violations: The defendant limited the search for documents to its legal department; made false, misleading and evasive responses; and willfully violated discovery rules. Arguing that the plaintiff's discovery requests were overly broad, the defendant claimed that the harshness of a default judgment sanction was not warranted. The court noted that the defendant is a "sophisticated multinational corporation experienced in litigation, and it analyzed the three factors assessed by the trial court to determine the appropriateness of a default judgment sanction willfulness of violation, substantial prejudice to opposing party, and availability of lesser sanctions. The court found that the record reasonably and substantially supported the trial court's conclusion, and it reinstated the $8 million default judgment. Mohrmeyer v. Wal-Mart Stores E., L.P., 2009 WL (E.D. Ky. Nov. 20, 2009). In this "slip and fall" personal injury action, the plaintiff sought sanctions against the defendant based on alleged spoliation of certain materials including surveillance video and a restroom maintenance log. The defendant argued the log was destroyed in the routine course of business long before it was made aware of the possibility of litigation. Relying on Fed.R.Civ.P. 37(e), the court found imposing sanctions on the defendant would be inappropriate because the evidence was destroyed as a result of routine, good-faith records management practices long before the defendant received any notice of the likelihood of litigation. Thus, the court denied the plaintiff s motion for sanctions and admonished the plaintiff's lack of inquiry of relevant facts prior to seeking such serious sanctions. Swofford v. Eslinger, 2009 WL (M.D. Fla. Sept. 28, 2009). In this 1983 claim asserting excessive force, the plaintiffs sought sanctions, alleging the defendants destroyed key evidence, including a laptop and s. Despite receiving preservation notices from the plaintiffs, the defendants' in-house counsel only forwarded a copy of the letters to senior-level employees (who did not ensure other employees complied with the defendants' preservation obligations) and failed to issue a litigation hold. Citing Zubulake V, the court found that it is insufficient for in-house counsel to simply notify employees of preservation notices, but rather counsel "must take affirmative steps to monitor compliance" to ensure preservation. Finding sanctions appropriate for the preservation failures, the court issued an adverse inference sanction for the laptop wiping and deletion of s. The court also awarded attorneys' fees and costs to the plaintiffs, holding the defendants and in-house counsel jointly and severally liable. Scalera v. Electrograph Sys. Inc., 2009 WL (E.D.N.Y. Sept. 29, 2009). In this disability and employment litigation, the plaintiff sought adverse instruction sanctions, citing the defendants' loss of information contained on two backup tapes. The plaintiff claimed the defendants produced only "a handful of s" after claiming the s were stored on corrupted backup tapes that could not be restored. In addition, the plaintiff argued the hard drives of a defendant and the plaintiff were "wiped clean," which prevented a search of the computer. Denying the plaintiff's motion for sanctions, the court found the defendants' duty to preserve arose when the plaintiff's EEOC charge was received, which was more than 30 days after the plaintiff left her employment. The court further held that while the defendants acted negligently in failing to preserve ESI until 223

224 almost two months after the duty to preserve arose, the plaintiff failed to demonstrate that the destroyed s would have been favorable to her case. Laethem Equip. Co., v. Deere & Co., 2009 WL (E.D. Mich. Sept. 21, 2009). In this ongoing breach of contract dispute, the court adopted the magistrate judge's report that recommended denial of the defendant's motion for sanctions and additional discovery of trial witnesses. The defendant sought sanctions, arguing the plaintiff failed to produce relevant ESI and privilege logs before depositions were taken. The plaintiff denied the defendant's allegations, arguing the motion for sanctions was intended to "divert attention from [defendant's] misconduct." Noting that this motion was a further example of how discovery is now a "black hole" that has the power to "annihilate the case itself," the magistrate judge recommended denial of the defendant's motion, finding the defendant failed to establish its defenses had been "materially prejudiced." The report further found the defendant failed to demonstrate that it was unable to obtain information it had a right to seek during depositions, but recommended the court allow an additional opportunity to depose trial witness not already deposed. Se. Mech. Servs., Inc., v. Brody, 2009 WL (M.D. Fla. Aug. 31, 2009). In this ongoing computer fraud and abuse litigation, the plaintiff requested sanctions alleging the laptops and BlackBerry smartphones belonging to the defendants were wiped of data. The defendants argued that all evidence was preserved on the servers and that s were produced in hard copy from the servers. Relying on explanations provided by computer forensics experts that the "wiped" state of the BlackBerry smartphones was attributed to intentional and deliberate actions, the court disagreed with the defendants' arguments and held that sanctions were appropriate. Given the nature of the destroyed evidence, including personal s, telephone records, text messages and calendar entries, the court determined the evidence was likely unfavorable to the defendants and therefore issued an adverse inference instruction. Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL (M.D. Fla. Aug. 3, 2009). In this ongoing insurance litigation, the defendants sought dismissal sanctions or preclusion of evidence pertaining to a key business interruption loss claim. The defendants argued the plaintiffs' violation of three court orders to compel production, misrepresentations that discovery was complete and production of 188 pages of key documents after the close of discovery warranted sanctions. In opposition, the plaintiffs argued they had no reason to know the production was incomplete. Finding that none of the court's previous efforts were effective to defer the plaintiffs from "continuing their pattern of stubborn defiance," the magistrate judge determined severe sanctions were warranted. In cataloging the plaintiffs' discovery failures, the magistrate judge noted that "no reasonable person could conclude" the plaintiffs' failure to timely produce documents was justified and that the plaintiffs' conduct was intended to deceive and prevent discovery. The magistrate judge also discussed the attorneys' role in the discovery misconduct, noting lawyers owe a duty of candor to the court and a duty to deal honestly and fairly with opposing counsel. Accordingly, the magistrate judge granted the motion for preclusion sanctions and determined the plaintiffs and counsel were jointly and severally responsible for the defendants' expenses and costs. Se. Mech. Servs., Inc., v. Brody, 2009 WL (M.D. Fla. July 24, 2009). In this computer fraud and abuse litigation, the defendants sought adverse inference and preclusion sanctions striking allegations in the plaintiff's complaint and barring plaintiff testimony regarding alleged spoliation by the defendants for the plaintiff's failure to issue a litigation hold and subsequent destruction of data. The defendants contended the only evidence related to the plaintiff's claim that the defendants improperly deleted data was lost because the plaintiff did not put a litigation hold into place to halt the automatic overwriting of its backup tapes. The plaintiff argued sanctions were 224

225 inappropriate because the defendants' request came too late to preserve the relevant data from automatic overwriting and its failure to implement a litigation hold was not in bad faith. The court found that the plaintiff had a duty to preserve evidence and should have initiated a litigation hold that would suspend the routine overwriting of its backup tapes at the time it sent the defendants a demand letter. Despite the finding of spoliation, the court denied the defendants' motion to impose sanctions against the plaintiff because it found the plaintiff did not act in bad faith and the defendants failed to show that any "crucial evidence" existed on the destroyed backup tapes. KCH Servs., Inc. v. Vanaire, Inc., 2009 WL (W.D.Ky. July 22, 2009). In this copyright infringement action, the plaintiff moved for sanctions in the form of a default judgment or, in the alternative, an adverse inference instruction for spoliation. The court found that an October 2005 phone call from the plaintiff and the November 2005 filing of a complaint were both notice of litigation, and that the defendant subsequently failed to preserve potentially discoverable s by continuing to delete and overwrite data even after the receipt of a preservation letter. The court held that the defendant's deletion of data and failure to implement a litigation hold fell beyond the scope of the routine, good faith operation of an electronic information system and constituted spoliation. Finding that an adverse inference instruction would redress the spoliation, the court granted the motion for adverse inference sanctions but denied awarding default judgment. Goodman v. Praxair Servs., Inc., 2009 WL (D. Md. July 7, 2009). In this breach of contract dispute, the plaintiff, a pro se litigant, sought spoliation sanctions alleging the defendant failed to issue litigation holds and preserve relevant evidence, destroyed employees' computers and failed to search disaster recovery tapes. The defendant argued a litigation hold was properly issued, there was no duty to preserve employees' computers, the plaintiff's motion was untimely and the plaintiff failed to provide proof regarding the disaster recovery tapes claim. Despite finding the plaintiff brought his motion for spoliation more than five months after discovery's conclusion, the court denied the defendant's argument that the motion was untimely because the dispositive motions had not yet been ruled on. The court then determined that the duty to preserve arose when the plaintiff sent a letter informing the defendant that he had consulted attorneys regarding the matter. Next, the court held that the defendant failed to issue litigation holds to key players and, as a result, three computers were discarded in violation of the preservation duty. The court determined that, while the defendant did not act in bad faith, it acted willfully when it intentionally destroyed the computers and s. Finding only one of the destroyed computers contained relevant evidence, the court issued an adverse jury instruction for the evidence contained on that particular computer. Finally, the court allowed the plaintiff to compile a list of expenses incurred in filing the instant motion, excluding attorney's fees because the plaintiff was pro se. Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d 802 (Cal. App. 4 Dist. June 2009). In this warranties and consumer fraud case, the plaintiff appealed a jury verdict, arguing the trial court abused its discretion by choosing to impose an adverse jury instruction and monetary sanctions instead of terminating sanctions against the defendant for discovery abuses. Prior to trial, the defendant failed to produce documents by the initial court-ordered production date and violated four discovery orders. After trial began, the plaintiff s attorney reviewed s produced by the defendant and renewed its prior motion for terminating sanctions, asserting that the defendant had failed to locate, withheld or destroyed relevant electronic documents. The court of appeals determined the defendant had stonewalled in producing highly relevant documents resulting in severe prejudice to the plaintiff, and that the defendant s repeated and egregious violations of discovery laws threatened the integrity of the judicial process. While the court of appeals held that the trial court did not initially abuse its discretion in denying the plaintiff s request for terminating sanctions, the duty to impose the severe sanctions arose when the trial court learned during trial 225

226 that the defendant had failed miserably to comply with the discovery orders. Accordingly, the court of appeals reversed the trial court judgment and remanded with directions to enter a default judgment against the defendant. The court also awarded attorneys fees to the plaintiff in the amount of $402,187 in connection with discovery proceedings. Arista Records LLC v. Usenet.com, Inc., 2009 WL (S.D.N.Y. June 30, 2009). In this copyright infringement litigation, the plaintiffs sought terminating sanctions alleging the defendants were continuingly unwilling to cooperate in discovery, refused to produce virtually any internal documents and had destroyed evidence. The plaintiffs computer forensic expert determined that four hard drives had been intentionally wiped, the contents of three hard drives had been primarily deleted and that recovered fragments indicated incriminating documents had been stored on the drives. The defendants offered conflicting explanations for the spoliation, finally claiming that the drives only appeared wiped because of a recently installed upgrade, but that all files had been backed up on a server. However, there were significant and unexplained gaps in the server and in production of the defendants records. Finding the spoliation of evidence was intentional and done in bad faith, and that the defendants engaged in evasive discovery tactics, the court issued a sanction precluding the defendant from asserting its affirmative defense on the merits of a goodfaith non-infringement policy. The court declined to award terminating sanctions despite the strong evidence of extreme wrongdoing, noting that case-dispositive sanctions should only be imposed in extreme circumstances after considering less drastic alternative sanctions West, LLC v. Red Spot Paint & Varnish Co., Inc., No. 1:05-CV-1670 (S.D. Ind. June 5, 2009). In this environmental litigation, the plaintiff requested default judgment sanctions alleging that the defendant purposefully withheld responsive documents and that the witnesses lied or misrepresented material truths. The defendant argued that it relied on its attorneys for discovery advice and therefore any error was the attorneys responsibility. The defendant s attorneys claimed the defendant failed to provide accurate and complete information, and that once potential attorney misconduct was discovered, the firm took prompt steps to remove the offending attorneys. Determining the case was replete with examples of violations of discovery rules that contributed to the lengthy litigation, the court noted that the defendant made a mockery of the discovery process and [has] subjected the truth to ridicule. In addition, the court stated that the defendant could not hide behind [its] own failure to organize its records then rely upon its lawyer to straighten up its mess. The court also found the defendant s attorneys had enough knowledge of its client s apparent disregard for the Federal Rules of Civil Procedure and thus must be held accountable. Accordingly, the court granted the plaintiff s motion for default judgment sanctions and ordered the defendant and its attorneys each pay one-half of the plaintiff s reasonable attorneys fees and costs. Triton Constr. Co. v. Eastern Shore Elec. Servs., Inc., 2009 WL (Del.Ch. May 18, 2009). In this breach of fiduciary duty litigation, the plaintiff sought an adverse inference instruction claiming the defendant intentionally destroyed ESI on his work computer and did not produce his personal laptop or thumb drive. The plaintiff retained a computer forensic expert who found a wiping program installed on the computer that made certain files and deleted s irretrievable. The defendant argued he never used wiping software and no longer owned the home computer or thumb drive. Finding the defendant intentionally, or at least recklessly, destroyed relevant evidence on his work computer and intentionally failed to preserve evidence on the other media forms, the court imposed an adverse inference sanction. Kipperman v. Onex Corp., 2009 WL (N.D.Ga. May 27, 2009). In this constructive transfer and fraud case, the plaintiff sought sanctions in the form of a default judgment against the defendant for discovery abuses. The plaintiff asserted that the defendant repeatedly defied court 226

227 orders, unilaterally narrowed the scope of restoration and production of court-ordered backup tapes, unilaterally redacted court-ordered produced documents to the point that such documents became unusable and misrepresented to the court the likely relevance of s sought. The defendants maintained that their redactions were in compliance with the court's orders and insisted that the broad discovery requested by the plaintiff would likely be fruitless. The court agreed with the plaintiffs that the defendant had blatantly disregarded court orders by making misrepresentations during discovery and stated it was deeply disturbed by the defendant's discovery conduct in what it regarded as "a textbook case of discovery abuse." However, the court declined to order default sanctions, citing novel issues of liability and noting that granting a default judgment in this case might be a grant of the largest default judgment sought in United States history. The court alternatively awarded $1,022,700 in monetary sanctions against the defendant to be paid to the plaintiff. Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 WL (D.Conn. May 21, 2009). In this environmental law litigation, the defendant sought sanctions alleging the plaintiff failed to preserve electronic data packages associated with soil sample testing. Noting the data at issue was undisputedly destroyed, the court analyzed whether a preservation obligation existed and whether sanctions were warranted. The court found a duty to preserve arose by mid-2005 at the latest, when the plaintiff's documents evinced an understanding that the evidence would be critical to the upcoming litigation. Citing the plaintiff's own recognition of the importance of the evidence, the court rejected the plaintiff's argument that destruction should be excused since the defendant did not demonstrate an intent to rely on the evidence during litigation. Noting an adverse inference would be an insufficient remedy, the court found the appropriate sanction to be preclusion of the evidence. Phillips v. Potter, 2009 WL (W.D.Pa. May 14, 2009). In this sexual discrimination case, the plaintiff filed a motion for sanctions based on the defendant's failure to preserve electronically stored information; the defendant admitted that a litigation hold was not put into place after litigation became foreseeable and that s were destroyed by an automatic deletion system as a result. The defendant argued that sanctions are nevertheless not appropriate because the s destroyed were not relevant. The court agreed with the defendant that there was no evidence of destruction of relevant documents and refused to order sanctions arising out of "mere speculation" that relevant documents were destroyed, noting also that there was no indication of any bad intent on the part of the defendant. Technical Sales Associates, Inc. v. Ohio Star Forge Co., 2009 U.S. Dist. (E.D.Mich. May 1, 2009). In this sales contract dispute, a third-party forensic examination corporation sought attorneys' fees and costs for its defense against an unsuccessful motion for contempt filed by the defendant. The defendant had moved for contempt arguing that the third party's disclosure of findings of spoliation to the plaintiff directly, without noticing the defendant, was a violation of the stipulated order. The court ruled that the third party had not violated the stipulated order because the order dealt narrowly with the discovery of actual data and did not govern the discovery of wrongdoing. The court, however, determined that the third party was not "free from taint" and should have provided the substance of the report to the defendant. The court further noted that all the parties had behaved poorly by engaging in "procedural wrangling" during discovery, resulting in an electronic discovery dispute that "has become the sideshow which eclipses the circus." The court ordered the third party to submit its billing records but reserved decision on the motion until the end of the case consistent with the determination of the sanctions motion. Patterson v. Goodyear Tire & Rubber Co., 2009 WL (D.Kan. Apr. 23, 2009). In this employment litigation, the plaintiff sought production of various electronic employee records and 227

228 policies, and an adverse inference instruction alleging spoliation of attendance records. The defendant argued electronic copies no longer existed due to the routine document deletion every 12 months, but that all records were preserved and produced in hard copy. Denying the motion to compel as untimely, the court noted "both parties neglected the issue of ESI from the outset of this litigation" in violation of their obligations under Rule 26 of Kansas' Guidelines for Discovery of Electronically Stored Information. Because many of the documents sought were contained on backup tapes, if available at all, the court was hesitant to intervene at the late time, but ordered the defendant to search two backup tapes pursuant to its offer to do so. The court denied the adverse inference instruction request, determining there was no evidence the attendance records were intentionally destroyed given the defendant's routine deletion system. Cont'l Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL (S.D.Fla. Apr. 22, 2009). In this Computer Fraud and Abuse Act litigation, the plaintiff claimed a former employee downloaded proprietary information prior to leaving the company. Among the plaintiff's numerous motions was its request for an adverse inference sanction. The plaintiff alleged that the computer files were taken with the intention to use the information in the former employee's new employment, they were accessed after notice of litigation and the related metadata was destroyed. Finding the plaintiff failed to demonstrate bad faith on the part of the former employee, the court denied the adverse inference request noting the conduct did not rise to the requisite level for a finding of evidence spoliation. Oz Optics Ltd. v. Hakimoglu, 2009 WL (Cal. App. 1 Dist. Apr. 15, 2009). In this employment dispute, both parties appealed the denial of their respective motions for judgment notwithstanding the verdict (JNOV). The defendant argued that the court improperly allowed expert forensic testimony alleging it was "devoid of substance" and improperly awarded $90,000 in monetary sanctions based on the defendant's hard drive file scrubbing. The plaintiff argued that the court abused its discretion by limiting sanctions to $90,000. The court of appeals affirmed the trial court on all grounds. First, the court rejected the defendant's argument that the forensic testimony was prejudicial, citing the defendant's inability to demonstrate why the testimony was inappropriate. Second, the court affirmed the sanctions as reasonable compensation for attorney's fees, costs and expenses incurred as a result of the defendant's discovery misconduct. In affirming, the court rejected the defendant's argument that the spoliation was unintentional, determining that intent is not required for monetary sanctions under the California Code of Civil Procedure. The court also rejected the plaintiff's argument that the monetary sanctions did not provide full compensation for reasonable expenses, finding the plaintiffs failed to establish the amount awarded was "arbitrary, capricious or whimsical." Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL (E.D. Mich. Apr. 14, 2009). In this patent litigation, the defendants moved for a hearing on sanctions for spoliation alleging the plaintiffs intentionally or recklessly destroyed backup tapes. Opposing the motion, the plaintiffs denied misconduct claiming they preserved electronic records pursuant to their standard operating procedures but admitted they did not halt all backup tape recycling. Thus, the court determined that potentially relevant evidence was destroyed after the duty to preserve arose. However, the court also determined the backup tapes were inaccessible and there is no duty to preserve inaccessible backup tapes beyond a company's normal retention period unless the Zubulake exception applies. The Zubulake exception requires the preservation of backup tapes containing documents of "key players" if the information is not otherwise available. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). The court granted the defendants' motion and ordered a hearing to determine whether the Zubulake exception applies and, if so, whether the plaintiffs acted with the requisite culpability and whether the spoliated evidence was relevant. 228

229 Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL (S.D.Fla. Apr. 9, 2009). In this litigation alleging a confidentiality agreement breach, the plaintiffs sought sanctions based on the defendant's "document dump" of 10,000 documents two months after the close of discovery and deletion of documents pursuant to a "print and purge" directive from defense counsel. Finding the defendant clearly failed to carry out its discovery obligations by acting in a grossly negligent manner, the court imposed sanctions. First, the court ordered further depositions regarding several categories of documents at cost to the defendant. The court then ordered additional limited discovery in relation to several document categories. According to the court, these sanctions were intended to compensate the plaintiffs as well as to punish and deter any further breaches of discovery obligations. The court also determined the defendant's counsel's decision to print and purge electronic documents without consulting opposing counsel or the court was an exercise in bad judgment constituting a breach of the defendant's duty to preserve. Accordingly, the court ordered that the plaintiffs shall be permitted to conduct a forensic examination of the defendant's electronic data backup system to verify all s were produced. In addition, the court ordered that the plaintiffs shall be permitted to conduct a forensic examination to ensure the reduction of the 60,000 data set to 35 documents (produced in a supplemental production) was appropriate. Finally, the court determined default judgment sanctions were not appropriate because the plaintiffs failed to demonstrate severe prejudice and the defendant did not act in bad faith. Phillip M. Adams & Assocs., LLC v. Dell, Inc., 2009 WL (D.Utah Mar. 30, 2009). In this patent infringement litigation, the plaintiff inferred that spoliation occurred based on the defendants' non-production of certain relevant evidence and sought sanctions. The defendants explained that the servers were not designed for archival purposes and that employees should locally preserve s of long term value (as determined by each individual employee). Agreeing that the defendants should possess far more evidence than was produced, the court considered when the defendants' preservation duty arose. The court determined the duty arose around 1999/2000 based on the litigation environment surrounding the specific subject matter of this patent dispute, not in February 2005 when the defendants learned that the plaintiff may bring a lawsuit. The court also denied application of the safe harbor provision, citing an e-discovery expert's declaration that failed to state the destruction was a result of a "routine, good-faith operation." Finally, the court found that the defendants' "[irresponsible data retention] practices invite the abuse of others" and that prejudice may be considerable. However, the court decided that appropriate sanctions could not be determined until after discovery closed and ordered the parties to provide further briefing on the prejudice suffered. Keithley v. Homestore.com, Inc., 2009 WL (N.D.Cal. Mar. 27, 2009). In this ongoing patent infringement litigation, the plaintiffs sought $1,379, in additional sanctions from the August 12, 2008 order (awarding the plaintiffs over $250,000 in fees and costs). The court awarded $282, in additional sanctions on the following issues: prevailing on the motion to compel; fees and costs incurred due to the defendants' belated production; and fees and costs in taking discovery on late-produced reports, reducing the amount of requested sanctions by between five to ten percent to account for any inefficiency by the plaintiffs. The court denied the plaintiffs' request for fees and costs incurred in seeking sanctions and ordered the plaintiffs to file a reply brief to the defendants' objections to costs incurred by the plaintiffs' expert. Adele S.R.L. v. Filene's Basement, Inc., 2009 WL (S.D.N.Y. Mar. 24, 2009). In this trademark infringement litigation, the plaintiffs moved for monetary sanctions for discovery misfeasance citing the defendants' allegedly inadequate search efforts and false representations that production was complete. The plaintiffs also sought cost-shifting for loading and reviewing 229

230 backup tapes. Opposing the motion, the defendants argued they acted reasonably under the circumstances. Finding the defendants made impermissibly false representations and did not come "remotely close to meeting" their production responsibilities, the court granted the motion for sanctions. However, the court denied the cost-shifting request, noting the plaintiffs did not meaningfully address the appropriateness of cost-shifting under Fed.R.Civ.P. 26(b)(2) or the reasonable accessibility of the backup tapes under the guidance of recent case law. Technical Sales Assocs., Inc. v. Ohio Star Forge Co., 2009 WL (E.D.Mich. Mar. 19, 2009). In this sales commission dispute, the plaintiff sought sanctions alleging evidence destruction and the defendant filed a motion for contempt arguing the plaintiff violated a computer forensic examination order by breaching its confidentiality provisions. The motions were premised on a forensic examination of the defendant's computer which revealed the deletion of approximately 70,000 files. Denying the defendant's motion for contempt, the court found that the stipulated order protected the "discovery of actual data, not the absence of data." (Emphasis in original.) Addressing the plaintiff's motion, the court outlined a timeline of events to determine when the duty to preserve arose. Based on this timeline, the court concluded that the timing of the destruction appeared "more than coincidental" since it occurred at about the same time the forensic examination was requested. The court granted the plaintiff's motion in part by determining monetary sanctions for the cost of the forensic examination appeared to be appropriate, but postponed a final determination as to the amount of sanctions and a potential adverse jury instruction until trial when the substantive harm caused by the defendant is known. Port Auth. Police Asian Jade Soc'y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. and N.J., 2009 WL (S.D.N.Y. Mar. 5, 2009). In this racial discrimination suit, the plaintiffs sought an adverse inference instruction sanction for the defendant's failure to preserve performance evaluations and to issue a litigation hold. The defendant argued that its failure to preserve the evidence was, in part, due to the September 11th 2001 attacks, which destroyed the defendant's executive offices. Accepting the defendant's argument, the court found that the preservation failure was a result of negligence, but not gross negligence. Despite the preservation failure, the court denied the motion for sanction as it determined there were other sources of evidence available to the plaintiffs. Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL (D.Colo. Feb. 25, 2009). In this real estate litigation, the defendants objected to the magistrate judge s recommendation regarding the plaintiffs motion for sanctions for the destruction of evidence. The plaintiffs expert concluded the defendants engaged in a systemic effort to erase pertinent data based on evidence of wiping software and reformatting. The magistrate judge found the defendants actions to be willful and in bad faith after the duty to preserve arose. The magistrate judge therefore recommended an adverse inference jury instruction, a monetary award associated with attorneys fees and costs as well as the costs associated with the forensic examination of the computer files. Finding the recommendation based on substantial evidence, the court adopted the magistrate s recommendation and warned the defendants that any further sanctions would be more severe and may include a default judgment. Kvitka v. Puffin Co., LLC, 2009 WL (M.D.Pa. Feb. 13, 2009). In this litigation, the plaintiffs filed suit alleging fabricated s wrongly led to an improper ban of its advertisements. In the instant motion, the defendants sought sanctions alleging the plaintiffs intentionally destroyed relevant evidence when discarding a laptop after receiving a preservation letter. Finding the plaintiffs acted in bad faith by discarding the laptop with relevant s and severely prejudiced the defendants ability to defend against the plaintiffs claims, the court granted the defendants spoliation motion and dismissed the plaintiffs claims with prejudice. 230

231 Arista Records LLC v. Usenet.com, Inc., 2009 WL (S.D.N.Y. Jan. 26, 2009). In this copyright infringement litigation, the plaintiffs moved for sanctions for spoliation. The plaintiffs alleged the defendants deliberately destroyed and failed to preserve highly relevant materials that would have provided evidence of the wide-scale infringement. The defendants argued that the evidence sought was not relevant to the plaintiffs claim, the data was transient in nature and their systems did not have the capacity to preserve the data. Regarding the duty to preserve, the court found that the defendants had an obligation to preserve the requested data and defendants failure to preserve was in bad faith. Therefore, the court imposed an adverse inference against the defendants and awarded attorneys fees and costs. Micron Tech., Inc. v. Rambus, Inc., 2009 WL (D. Del. Jan. 9, 2009). In this patent infringement litigation, the plaintiff sought sanctions claiming the defendant spoliated relevant documents. In 1998, the defendant implemented a document retention policy whereby relevant documents were destroyed. Finding the defendant was an aggressive competitor, the court determined that litigation was inevitable and reasonably foreseeable since December Therefore, the court determined that any document destruction following December 1998 was intentional and in bad faith. As the plaintiff established that the documents that were destroyed were discoverable and relevant to the instant litigation, the court concluded that the plaintiff was prejudiced by the defendant s conduct. The court therefore sanctioned the defendant by declaring the patents in suit unenforceable against the plaintiff. Keithley v. Homestore.com, Inc., 2009 WL (N.D.Cal. Jan. 7, 2009). In this ongoing patent infringement litigation, the defendants sought $391, in additional sanctions. The sanctions sought were based on two categories: costs the defendants incurred in securing production and costs relating to the use of materials produced late. After considering each specific monetary request, the court awarded a total of $205, to the defendants: $72, attributable to depositions costs; $11, for the costs incurred in preparing the documents for deposition; and $ for subpoena costs. The court also ordered the plaintiffs to pay the lodging expenses incurred during the re-depositions. In re Fannie Mae Sec. Litig., 2009 WL (C.A.D.C. Jan. 6, 2009). In this litigation, the Office of Federal Housing Enterprise Oversight (OFHEO), a non-party, appealed the district court s order finding it in contempt for failing to comply with a discovery deadline in a stipulated scheduling order. OFHEO argued that the defendant s decision to supply four hundred keyword terms was outside the scope of appropriate search terms, thereby extending the time needed to comply with its production requirements. However, aware of the deadlines, OFHEO sought several discovery extensions, hired 50 contract attorneys and spent over $6 million 9% of the agency s entire annual budget to comply with the defendants discovery requests. Finding OFHEO s efforts legally insufficient, the court compared its treatment of the discovery deadlines as movable goal posts and directed OFHEO to supply documents withheld for privilege that were not logged by the deadline as a sanction for their discovery misconduct. However, the court ruled that any privileged documents that are produced and identified as such will be promptly returned to OFHEO. Keithley v. Homestore.com, Inc., 2008 WL (N.D.Cal. Dec. 15, 2008). In this ongoing patent infringement litigation, the defendants objected to the magistrate judge s report and recommendation for monetary sanctions. The defendants objected to the monetary sanctions arguing: (1) the spoliation of source code is not sanctionable; (2) they reasonably believed they had complied with a previous production order; (3) appropriate document retention and litigation hold policies were in place; and (4) sanctions, if warranted, should only be imposed on the defendant Move (formerly homestore.com). Declining to find the magistrate s report and recommendation clearly erroneous, the court adopted it. 231

232 Barnett v. Simmons, 2008 WL (Okla. Nov. 10, 2008). In this breach of contract case, the trial court required willfulness for the imposition of sanctions and the plaintiffs appealed. The Court of Civil Appeals affirmed the trial court s ruling, but remanded for consideration of whether sanctions could be imposed for mere negligence. Both sides petitioned for writs of certiorari. In the underlying dispute, the plaintiff sought unpaid royalties on an oil lease and the defendant filed a motion to compel production of certain files on the plaintiff s computer. Defendant s motion to compel was granted by the trial court. Subsequently, the plaintiff enlisted the help of several computer experts to remove alleged viruses, neglecting to mention that the hard drive was the subject of a court order. During the expert analysis, several files were deleted as a result of the use of numerous data wiping programs. Citing Oklahoma s discovery code 3237(B)(2) (which mirrors Fed.R.Civ.Pro. 37(b)(2) and authorizes sanctions for the failure to comply with a court order) the Court held that the trial court erred as a matter of law in determining that sanctions could be imposed only upon a showing of willful conduct. The Court determined that willfulness is relevant to the severity of sanctions imposed, but not to whether sanctions should be imposed. Accordingly, the Court reversed and remanded for reconsideration of the defendants motion for sanctions. Keithley v. Home Store.com, Inc., 2008 WL (N.D.Cal. Nov. 6, 2008). In this ongoing patent infringement litigation, the defendants sought multiple types of sanctions alleging the plaintiffs produced documents too late and committed spoliation. The defendants argued the late production and spoliation were prejudicial, caused them to conduct last-minute triage discovery and prevented them from conducting important depositions. Finding the belated production and failure to produce attachments to be negligent, the magistrate judge issued sanctions under Rule 37, awarding fees and costs reasonably attributed to the spoliation. Additionally, the court extended the discovery cutoff date for the limited purpose of allowing the defendants to take additional depositions. S. Capitol Enterprises, Inc. v. Conseco Services., LLC, 2008 WL (M.D.La. Oct. 24, 2008). In this ongoing electronic discovery dispute, the plaintiffs sought sanctions and/or additional discovery orders claiming the defendants failed to comply with a previous discovery ruling. The plaintiff claimed the defendant failed to produce 1,000 relevant documents, however the court stated that the likely benefit in having more documents produced was outweighed by the burden and expense associated with retrieving the evidence. The court noted that perfection in document production is not required, and held that experts were allowed to estimate based on the data already produced. Oldenkamp v. United Am. Ins. Co., 2008 WL (N.D.Okla. Oct. 21, 2008). In this case involving the payment of health insurance benefits, the plaintiffs filed a motion to compel discovery responses or an adverse inference for spoliation. The plaintiffs claimed responsive documents were not produced, and that the defendants either destroyed or failed to preserve these documents after notice of litigation. The plaintiffs sought recordings of telephone conversations, s and internal company communication reports. Arguing a litigation hold was in place, the defendant claimed all s were produced and no records were destroyed. Noting a party cannot be ordered to produce documents which do not exist, combined with the defendant s assertion under oath that all responsive documents were produced, the court denied the motion to compel. The court also denied sanctions finding the plaintiffs failed to produce evidence of intentional destruction. Gutman v. Klein, 2008 WL (E.D.N.Y. Oct. 15, 2008). In this fraud litigation, the plaintiffs sought default judgment and monetary sanctions claiming the defendants destroyed crucial evidence on a laptop belonging to one of the defendants. Previously, the court ordered a courtappointed forensic expert to analyze the hard drives for evidence of a deletion program. The 232

233 examiner forensically copied the hard drive, discovered that a deletion program did exist, and that hundreds of documents were deleted. The forensic expert also discovered that the computer s system clock had been altered, calling into question the integrity of the time stamps in the event logs. Finding that the plaintiffs demonstrated spoliation of evidence on the laptop and that the evidence was relevant, the magistrate judge determined the defendant acted in bad faith and recommended a default judgment, holding that the spoliation made it impossible to identify files, therefore making lesser sanctions inadequate. The magistrate judge also recommended awarding attorneys fees to the plaintiffs relating to all expenses incurred regarding the laptop, but did not recommend that any punitive monetary sanctions be imposed. Arteria Prop., Ltd. v. Universal Funding V.T.O., Inc., 2008 WL (D.N.J. Oct. 1, 2008). In this litigation involving a long-term loan, the plaintiff sought an adverse inference based on the alleged lack of production and spoliation of two types of documents: a highly relevant letter and information relating to the defendants website as it existed at the time this dispute arose. Determining the defendants were in control of the relevant missing letter, the court found sanctions appropriate. The court refused to make a culpability determination, finding that an adverse inference was warranted regardless of whether a negligence or bad faith standard applied. Regarding the website, the court treated it as any other electronic file, finding the defendants had the ultimate authority and control over it. Based on this willful destruction or withholding of evidence, the court also imposed an adverse inference regarding the website, granting the plaintiff s motion in full. Pandora Jewelry, LLC v. Chamilia, LLC, 2008 WL (D.Md. Sept. 30, 2008). In this dispute alleging multiple violations of the Lanham Act, the plaintiff sought sanctions, asserting the defendant engaged in discovery abuses and spoliation. The defendant claimed they were unable to provide the communications at issue, possibly due to their retention policy, but claimed that any such information was irrelevant. The defendant also argued the plaintiff was unable to establish the elements of their claims and sought summary judgment. The court agreed with the defendant and granted its motion for summary judgment, but also found the defendant abused the discovery process by failing to timely or fully respond to the plaintiff s production request and deposition notice. Unwilling to ignore the defendant s stonewalling of the discovery process, the court imposed monetary sanctions by awarding the plaintiff reasonable costs associated with bringing the motion at issue. However, the court was unwilling to impose spoliation sanctions as the plaintiff was unable to offer concrete proof that any lost information would have been relevant or supported its claims. In re Riverside Healthcare, Inc. v. Sysco Food Serv. of San Antonio, LP, 393 B.R. 422 (M.D.La. Sept. 11, 2008). In this bankruptcy case, the plaintiff sought an adverse inference instruction based on the defendant s deletion of relevant from its servers. Stating that bad faith must be demonstrated to support an adverse inference, the court held that the plaintiff did not prove that the defendant intentionally deleted any since it was deleted in accordance with the defendant s routine practice prior to litigation. The court also noted that the plaintiff s failure to pursue this evidence from other potentially available sources undermined its claim of unfair prejudice and the demand for sanctions. Accordingly, the court denied the plaintiff s motion. Wong v. Thomas, 2008 WL (D.N.J. Sept. 10, 2008). In this wrongful termination litigation, the plaintiff sought sanctions for spoliation of evidence. Previously, the plaintiff sought all communications between the plaintiff and the defendants and claimed such information was integral to her ability to corroborate and establish her claims. The defendants claimed all electronic documents were destroyed as part of its routine practice of closing accounts and deleting files from the office computers of departing employees. The defendant then employed outside 233

234 vendors to recover the sought after . After reviewing eighteen boxes of recovered , the defendant was unable to find any information relevant to the present litigation. The court found the defendants acted in good faith in their recovery and review efforts, but still considered whether sanctions were appropriate. Finding plaintiff s vague request for s as a failure to identify the possible information contained therein, the court determined that the plaintiff did not demonstrate the relevancy and denied the plaintiff s motion. Metrokane, Inc. v. Built NY, Inc., 2008 WL (S.D.N.Y. Sept. 3, 2008). In this litigation surrounding various intellectual property rights, the defendant sought sanctions claiming the plaintiff failed to produce s the defendant considered highly damaging to the plaintiff. The defendant further argued that the belated discovery hampered its ability to pursue otherwise crucial discovery related to the communications. Opposing the motion, the plaintiff vaguely asserted that the defendant failed to demonstrate any misconduct or prejudice. Additionally, the defendant pointed to its lack of an established written document retention policy, leaving the court to infer that their argument was the s were no longer in its system. Unimpressed with the plaintiff s assertions, the court found the plaintiff was, at the minimum, negligent in failing to preserve and produce the s. In addition, the court found the plaintiff s failure to turn over a specific portion of the s to be intentional concealment. Accordingly, the court ordered an adverse jury instruction and awarded attorneys fees incurred in bringing this motion. Nursing Home Pension Fund v. Oracle Corp., 2008 WL (N.D.Cal. Sept. 2, 2008). In this securities class action, the plaintiffs sought a default judgment or, alternatively, an adverse inference sanction. To support the motion, plaintiffs alleged the defendants: engaged in inadequate preservation efforts after receiving notice of the litigation; failed to preserve backup tapes; and failed to preserve transcripts and audio files. Declining to issue default judgment, the court found that the plaintiffs had not demonstrated the degree of prejudice necessary to warrant such sanctions, noting that the alleged misconduct did not eclipse entirely the possibility of a just result. However, the court issued an adverse inference regarding the failure to preserve and produce e- mails from one of the defendant s files, noting this failure raised questions of authenticity and uncertainty. Atlantic Recording Corp. v. Howell, 2008 WL (D.Ariz. Aug. 29, 2008). In this copyright infringement litigation, the plaintiffs sought terminating sanctions alleging the defendant willfully destroyed material evidence. The defendant removed the file-sharing program at issue from his computer after receiving the notice of litigation, without taking a proper backup. He also reinstalled the operating system after he received the request for copies of various files on his computer. In addition, a forensic examination showed that the defendant downloaded wiping software to permanently delete traces of files shortly after he filed his answer. Finding the defendant to have engaged in brazen destruction of evidence, which made it impossible for the case to be decided on the merits, the court imposed a default judgment against defendant and awarded the plaintiff $40,500 in statutory damages and $350 in filing fees. Laethem Equip. Co. v. Deere & Co., 2008 WL (E.D.Mich. Aug. 26, 2008). In this breach of contract and tortious interference with business relationships, inter alia, dispute, the defendant objected to the magistrate judge s recommendation that the defendant s motion to dismiss the complaint be denied. Seeking dismissal, the defendant alleged irreparable harm due to the plaintiff intentionally withholding two disks containing electronically stored information and failing to provide a privilege log despite asserting privilege. Countering, the plaintiff argued the existence of the disks was disclosed in 2005 and that the defense counsel abused the plaintiff s inadvertently produced privileged documents by using them as exhibits. Weighing the factors considered when determining whether to dismiss a case under either Fed.R.Civ.P 37(b) or 41(b), the magistrate 234

235 judge found dismissal to be an inappropriate sanction for the discovery misconduct, citing lack of bad faith and the availability of less dramatic sanctions. The court adopted the magistrate judge s report and recommendation and referred the issue of the appropriateness of alternative sanctions back to the magistrate judge. Sherman v. Harrah s New Orleans Casino, 2008 WL (E.D.La. Aug. 20, 2008). In this litigation involving the settlement of a gambling debt, the defendants filed an objection to the magistrate s prior report and recommendation granting the plaintiff s motion to compel and awarding plaintiff attorney s fees and expenses. The magistrate recommended the plaintiff be awarded attorneys fees and costs associated with the filing of the second motion to compel and three additional depositions made necessary due to the defendant s failure to meet their discovery obligations. The defendants objected to this recommendation, arguing that its discovery response was substantially justified and the amount awarded for attorney s fees was excessive and contrary to Fed.R.Civ.P. 37(a)(5). Denying the defendants objection, the court approved the magistrate s report, agreeing that the defendant had abused the discovery process by repeatedly waiting until the eve of deposition to provide hundreds of pages of responsive documents. Reino de Espana v. Am. Bureau of Shipping, Inc., 2008 WL (S.D.N.Y. Aug. 18, 2008). In this action arising out of the sinking of an oil tanker off the coast of Spain, the plaintiff (Spain) objected to a previous ruling that required the production of electronic documents and imposed sanctions in the form of attorneys fees and costs associated with the defendants motion to compel. The defendants made its first discovery request in January 2004, seeking non-privileged electronic documents. In 2006, the judge determined the plaintiff s failure to conduct discovery and preserve documents in accordance with the Federal Rules of Civil Procedure was sanctionable as the Rules govern international discovery in cases falling under American jurisdiction. Upholding the ruling, the court found the plaintiff had received adequate notice regarding the preservation and spoliation issues and further upheld the award of attorneys fees as a reasonable sanction, citing the plaintiff s negligent failure to preserve electronic evidence. GSI Group, Inc. v. Sukup Mfg. Co., 2008 WL (C.D.Ill. Aug. 18, 2008). In this intellectual property litigation, the defendant filed an objection to the magistrate judge s report and recommendation, denying the defendant s motions to dismiss, or in the alternative to compel production of s. The magistrate cited the lack of clear evidence of willfulness or bad faith by the plaintiff and the defendant s failure to present sufficient evidence why further production was necessary. However, based on the defendant s good faith attempt to resolve this dispute prior to bringing it before the court, the magistrate recommended the plaintiff pay the defendant s reasonable expenses incurred in bringing the motion to compel. Denying the defendant s objection, the court approved the recommendation in full, denying defendant s motion to dismiss the complaint and instead ordered the plaintiff to pay reasonable expenses, including attorney s fees. Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL (N.D.Tex. Aug. 8, 2008). In this racketeering litigation, the plaintiff filed an objection to the magistrate judge s order that recommended monetary sanctions and a jury instruction allowing for the consideration of spoliation. Previously the defendants moved for sanctions and contempt against the plaintiff and two counter-defendants, alleging they failed to preserve hard drives as instructed by a preservation order. An independent forensic expert reviewed the two counter-defendants hard drive images for relevant documents and determined the first hard drive was actually a damaged DVD that contained only active files, excluding unallocated space. When examining an additional drive, the forensic expert noted it was wiped using Window Washer, which intentionally deleted large quantities of data. Based on this willful spoliation, the magistrate judge recommended monetary sanctions as well as an adverse jury instruction on the remaining counterclaim. After conducting a 235

236 de novo review, the court overruled the plaintiff s objection and adopted the magistrate judge s order in full. S. New Eng. Tel. Co. v. Global NAPs, Inc., 251 F.R.D. 82 (D.Conn. 2008). In this ongoing discovery battle, the plaintiff sought default judgment sanctions alleging the defendants failed to comply with discovery orders. Detailing the lawsuit s long history of discovery issues, the court cited several factors that justified the imposition of default judgment, noting the defendants behavior exemplified the type of willful disregard for the process of discovery that warrants dismissal. The factors cited included: willful violation of court order to produce general ledgers; use of wiping software to intentionally destroy evidence, as determined by the plaintiff s computer forensic expert; lying to the court about the ability to obtain documents from third parties; misleading answers to discovery requests; and the defendants long history of violating discovery orders. Determining the defendants committed a fraud upon the court, the court ordered them to pay judgment in favor of the plaintiff in the amount of $5,247,781.45, in addition to costs and fees of $645, Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL (N.D. Ind. May 27, 2008). In this litigation alleging breach of contract, the plaintiff filed a motion to compel protective order compliance and for sanctions, claiming the defendant s production abused the protective order. The defendant produced 75,000 pages worth of based on search terms supplied by the plaintiff and designated every document for attorney eyes only. Finding the defendants sufficiently complied with the protective order, the court determined if the plaintiff wanted a more selective designation of the documents it should have drafted the protective order more clearly. Additionally, the court determined the plaintiff had no entity to blame except itself for providing an expansive search request that returned a voluminous amount of documents. However, the court left open a challenge by the plaintiffs to the appropriateness of the attorney eyes only designation after the documents have been examined. Finally, the court rejected the plaintiff s request for production in hard copy form, finding the defendant s production of s on a disc adequate under Fed.R.Civ.P. 34. The court also warned both parties that a special master may be used, funded by the wrongful party, if this type of dispute continues. Johnson v. Wells Fargo Home Mortg., Inc., 2008 WL (D. Nev. May 16, 2008). In this mortgage loans and credit dispute, the defendants filed a motion to dismiss, alleging evidence spoliation. Through forensic analysis, the defendants computer forensic expert established that the plaintiff reformatted both laptops shortly after a production request for the hard drives, and also found two documents containing metadata suggesting the plaintiff created the documents one year later than claimed. Opposing the motion, the plaintiff claimed the hard drives were wiped and reformatted for maintenance purposes due to virus infections. The court ordered an adverse jury instruction creating a presumption in favor of the defendants finding the plaintiff acted willfully; was on notice that information contained on the hard drives was potentially relevant to litigation; and did not produce backup files despite numerous requests. The court reasoned that the harsh sanction of dismissal was not appropriate because the evidence secured by the defendants computer forensic expert, combined with the adverse jury instruction, did not render it helpless to rebut any material that [the] plaintiff might use to overcome the presumption at trial. Eckhardt v. Bank of America Corp., 2008 WL (W.D.N.C. May 6, 2008). In this disability discrimination litigation, the plaintiff filed a motion for discovery sanctions and additional discovery. The plaintiff alleged the defendant did not fully comply with a previous court order requiring the defendant to identify the computers used by decision makers in the plaintiff s employment termination. The defendant claimed all documents of known locations were produced and the relevancy of the documents of unknown locations had not been established. Finding relevant 236

237 documents were not produced, the court allowed the plaintiff to seek documents from the defendant s backup tapes of electronically stored material. However, the court did not find that the defendant acted in bad faith, but rather commented that the discovery problem highlights the changing face of discovery in an electronic world. The court ordered the defendant to pay costs associated with making its current and former employee deponents available. Attard v. City of New York, 2008 WL (E.D.N.Y. May 5, 2008). In this age discrimination litigation, the plaintiff filed second and third motions for sanctions, citing the defendants repeated failure to comply with court-ordered discovery and failure to serve a timely opposition to the second motion. After analyzing the case history, the court found that the defendants forced [the] plaintiffs to endure lengthy delays, struggle with defective data production and expend valuable resources to compel [the] defendants to comply with the law. The court found the statistical data produced was not in a usable form because it contained flawed data that made accurate analysis impossible. Subsequently, the court awarded monetary sanctions requiring the defendant to pay reasonable expenses associated with the plaintiff s use of expert witnesses, and attorneys fees and costs accrued by the plaintiff to enforce discovery. R&R Sails, Inc. v. Ins. Co. of Pa., 2008 WL (S.D. Cal. April 18, 2008). In this insurance litigation, the plaintiff sought sanctions and preclusion of ESI that the defendants produced after the discovery deadline. The defendants argued that sanctions were inappropriate because the untimely production was an honest mistake as they initially did not realize the logs existed, and then belatedly realized they failed to produce six pages of computer notes from the electronic claim logs. Finding sanctions appropriate under Fed.R.Civ.P. 26(g), the magistrate judge determined a reasonable inquiry into potentially discoverable material must be made and that an honest mistake is not a substantial justification for an incorrect certification made by an attorney. Additionally, the magistrate justified sanctions under Fed.R.Civ.P. 37(c), citing the defendants failure to timely supplement initial disclosures without substantial justification. The magistrate ordered monetary sanctions and recommended precluding the defendants from introducing or relying on documents and ESI that were not produced on time. Acker v. Workhorse Sales Corp., 2008 WL (E.D.Mich. April 28, 2008). In this suit, the plaintiff objected to the Magistrate s Order requiring the plaintiff to pay the defendant s costs and attorneys fees incurred in the previous motion to compel. The plaintiff claimed the promised disclosure was provided and argued the delay was attributable to the defendant s failure to give adequate production format directions. Rejecting the plaintiff s numerous justifications for the discovery delay, the court overruled the objection determining the Magistrate s award of costs and attorneys fees was not erroneous or unreasonable. Sterle v. Elizabeth Arden, Inc., 2008 WL (D.Conn. April 9, 2008). In this unlawful termination litigation, the defendant sought a protective order to prevent further inspection of the defendant s computer systems and attorneys fees. In response, the plaintiff filed a motion for contempt claiming the defendant violated the previously issued inspection order and a motion for attorneys fees. Addressing the defendant s motions, the court found no good cause to justify a protective order or attorneys fees. Turning to the plaintiff s motions, the court determined the defendant failed to comply with the Inspection Order and failed to demonstrate that special circumstances justified the non-compliance. Subsequently, the court ordered the defense attorneys to pay reasonable fees and expenses to the plaintiff attorney, in addition to paying consultant expenses incurred for prior inspection work hampered by the defendant s non-compliance. Additionally, the court ordered the defendant s electronic records be inspected. Finally, the court denied the plaintiff s request for default judgment, but warned one will be entered if the defendant does not comply with this court order. 237

238 Yeisley v. PA State Police, 2008 WL (M.D.Pa. March 31, 2008). In this civil rights litigation, the plaintiff sought sanctions for untimely discovery disclosures and a lack of production. Claiming the turnover in defense counsel attributed to discovery delays, the defendants asserted any untimely production resulted from a desire to fully comply with discovery requests. Ordering the re-depositions of select people at no cost to the plaintiff, the court refused to impose further sanctions. However, the court ordered the defendants to promptly search and produce electronic records, including , or further sanctions would be considered. Autotech Technologies, Ltd. v. Automationdirect.com, Inc., 2008 WL (N.D.Ill. Mar. 25, 2008). In this trademark infringement litigation, the defendant moved for sanctions claiming inadequate discovery production due to missing information. Finding the plaintiff complied with the defendant s discovery request, the court declined to issue sanctions. The court further ordered the parties to meet to resolve how the specific information sought by the defendant may be obtained, with the defendant bearing the costs unless able to demonstrate the information should have been produced by the original search. Grange Mut. Cas. Co. v. Mack, 2008 WL (6th Cir. Mar. 17, 2008). In this suit alleging fraud, the defendant appealed a default judgment and liability award of damages plus attorney s costs and fees, arguing abuse of judicial discretion. The defendant purposely delayed discovery, ignored court discovery deadlines and orders to compel, instructed employees to ignore court orders and ignored a serious warning from the district judge relating to his continued discovery misconduct. Based on the defendant s willful bad faith and the resulting prejudice suffered by the plaintiffs, the court affirmed the default judgment, [B]oth to punish the defendant for his egregious conduct and to deter other litigants who might be tempted to make a mockery of the discovery process. ClearOne Communications, Inc. v. Chiang, 2008 WL (D.Utah Mar. 10, 2008). In this litigation involving trade secret misappropriation, the plaintiff filed a motion for sanctions alleging the defendants misrepresented material facts during discovery and withheld a smoking gun e- mail. The defendants claimed the misrepresentation was merely a misunderstanding by their Fed.R.Civ.P. 30(b)(6) witness, who spoke English only as his third language. Further, the defendants argued they were not in possession of the in question as their computer system was not programmed to save sent s. Suspicious of the defendants computer system but unable to locate the in question, the court found the defendant s actions sanctionable. The court was unwilling to enter default judgment as it had not previously issued a warning and instead issued an adverse jury instruction relating to the misrepresentation of the 30(b)(6) witness, allowing the jury to consider the misrepresentation when determining the witness credibility. Connor v. Sun Trust Bank, 2008 WL (N.D.Ga. Mar. 5, 2008). In this litigation alleging interference and retaliation claims under FMLA, the plaintiff filed a motion for sanctions based on the defendant s failure to produce a highly relevant during discovery. The plaintiff located, through other means, a relevant that explained her dismissal to other employees. The defendant moved for summary judgment relying on their 30-day destruction policy which automatically deleted s that were thirty days old, unless they were first archived by the user. The court, un-persuaded by the defendant s reasoning, granted the plaintiff s motion for sanctions and issued an adverse jury instruction. Qualcomm Inc. v. Broadcom Corp., 2008 WL (S.D.Cal Mar. 5, 2008). In this underlying patent infringement case, cross examination of the plaintiff s witness revealed over 200,000 pages of undisclosed relevant s during one of the last days of trial. The court, displeased with the organized program of litigation misconduct, ordered the plaintiff s counsel to show cause as to why individual sanctions should not be imposed against the attorneys. The attorneys filed a motion 238

239 shortly thereafter seeking application of the federal common law self-defense exception which would have allowed disclosure of attorney-client privileged information at the hearing. On January 7th, 2008, the magistrate judge denied the motion and this appeal followed. The Senior District Court Judge, Rudi M. Brewster, vacated the trial court s decision as violating the due process rights of the attorneys to fully defend themselves and found the self-defense exception to apply. Finley v. Hartford Life & Accident Ins. Co., 2008 WL (N.D.Cal. Feb. 22, 2008). In this wrongful termination of disability benefits suit, the plaintiff filed a motion for sanctions alleging the defendant failed to timely disclose a relevant surveillance video taken of the plaintiff. The plaintiff sought monetary sanctions reimbursing the costs spent deposing members of the defendant corporation and retaining the services of an expert. Additionally, the plaintiff sought sanctions against the defendant s attorney for failure to perform a reasonable inquiry. Citing an administrative oversight, the defendant claimed a reasonable search was conducted and upon discovery of its existence, supplied the full video six months later. In regard to the plaintiff s claim of negligence, the attorney argued lack of evidence of bad faith should preclude sanctions. Disagreeing with the defendant s position regarding the surveillance video, the court found it unreasonable to rely on a discovery system with few checks and balances. Further, while the court found the defendant s attorney negligent in oversight of the discovery process, it refused to issue personal sanctions due to an absence of evidence of bad faith. Of the $57, sought by the plaintiff, the court awarded $9,000 as a reasonable sanction. Ingoglia v. Barnes & Noble College Booksellers, Inc., 2008 WL (N.Y. App. Div. Feb. 19, 2008). In this action to recover damages for defamation, the defendant appealed the New York Supreme Court s decision to deny its motion to dismiss. The defendant sought dismissal based on the common law doctrine of spoliation which provides for sanctions for negligent or intentional destruction of evidence. Previously, the defendant sought inspection of the plaintiff s home computer and the court granted the request. The defense expert found evidence that numerous files, images, folders and some internet history had been deleted following the request for inspection but preceding the production, as well as evidence of the installation of software designed to remove data. This court reversed, finding an abuse of discretion, and granted the dismissal due to the severe prejudice suffered by the defendant as a result of the plaintiff s spoliation. Thompson v. Assurant Employee Benefits, 2008 WL (D.Kan. Feb. 8, 2008). In this case, the defendants failed to produce initial disclosures within the deadline established by the scheduling order. The plaintiff followed up with a letter and a phone call and when both were unanswered, he filed a motion to compel and a subsequent motion seeking reimbursement of fees and expenses associated with the original motion to compel. The defendants claimed an innocent, internal miscommunication between the partner and associate resulted in the missed production deadline and argued against the imposition of sanctions. The court determined the plaintiff expended unnecessary resources in the effort to secure production from the defendants and was therefore entitled to reimbursement of fees and expenses in the amount of $580. Diabetes Ctr. of Am. v. Healthpia Am., Inc., 2008 WL (S.D.Tex. Feb. 5, 2008). In this breach of contract case, both parties moved for sanctions, alleging spoliation and discovery abuses. The plaintiff s motion sought a spoliation jury instruction alleging the defendant failed to backup s which were subsequently lost when the defendants laptops were stolen. The plaintiff also sought monetary sanctions for alleged discovery abuses, alleging the defendants withholding of documents caused the plaintiff s attorney to incur unnecessary travel expenses. The defendants sought a spoliation jury instruction and alleged the plaintiff failed to preserve and produce requested copies of critical s. Additionally, the defendants sought monetary 239

240 sanctions alleging the plaintiff failed to notify the defendants that evidence had been lost prior to flying an employee to the site to inspect it. The court determined there was an absence of bad faith and denied both requests for sanctions. The court further denied both parties requests for monetary sanctions finding both parties produced discovery in an incomplete or lax manner on certain occasions. Hawaiian Airlines, Inc. v. Mesa Air Group, Inc., 2008 WL (Bkrtcy.D.Hawaii Jan. 22, 2008). Previously in this breach of contract litigation, the court sanctioned the defendant for deliberate destruction of electronic evidence while under a preservation obligation by finding certain facts conclusively established in favor of the plaintiff. Subsequently, the plaintiff filed this motion for attorney s fees and costs. Finding the defendant s prior spoliation to be the cause of the expenditures of the plaintiff s computer forensic expert, the court awarded the related fees and expenses. However, as the additional expert witness fees, attorney travel, meal costs and computerized legal research fees were unrelated to the misconduct, the court declined to award them to the plaintiff. Qualcomm Inc. v. Broadcom Corp., 2008 WL (S.D.Cal. Jan. 7, 2008). In this patent infringement litigation, the court found the plaintiffs to have committed monumental and intentional discovery violations for failing to produce thousands of documents requested in discovery. Several plaintiffs attorneys were ordered to show cause as to why they should not be personally sanctioned. Finding an absence of good faith participation in the discovery process, the court upheld the sanction previously issued, ordering Qualcomm to pay the defendant s attorney s fees in excess of $8.5 million. Additionally, the court sanctioned six attorneys for intentionally hiding or recklessly ignoring relevant documents and blindly accepting Qualcomm s claims that the searches were adequate. The six attorneys were ordered to forward the sanction order to the California State Bar for review and consideration of possible further disciplinary actions due to violation of their ethical duties. Additionally, the attorneys were instructed to participate in a Case Review and Enforcement of Discovery Obligations (CREDO) program. The court believed participation in this program may deter future discovery misconduct by providing a road map to assist in understanding ethical obligations during the discovery process as well as establish a turning point for increased ethical conduct in the practice of law. Columbia Pictures v. Bunnell, Case No. 2:06-cv FMC-JCx (C.D.Cal. Dec. 13, 2007). In this copyright infringement suit, the plaintiffs sought default judgment sanctions based on the defendants spoliation of evidence. The plaintiffs claimed the defendants willfully spoliated evidence by deleting and modifying user forums to remove mention of copyrighted material, deleting directory headings, destroying full IP addresses previously kept on file and falsely claiming that identifying information of moderators was not available. The court set forth five factors to consider when deciding whether to enter default judgment: 1) expeditious resolution of litigation; 2) the court s docket management; 3) risk of prejudice; 4) public policy in deciding cases on their merits; and 5) the availability of lesser sanctions. The court found the defendants engaged in efforts to destroy evidence and provided false testimony under oath. Considering lesser sanctions, the court concluded the prejudice suffered was too great to overcome with an adverse jury instruction. The court also noted past monetary sanctions imposed upon the defendants were clearly ineffective and granted the motion for a default judgment in favor of the plaintiffs. Toussie v. County of Suffolk, 2007 WL (E.D.N.Y. Dec. 21, 2007). In this suit, the plaintiffs claimed the defendants violated their civil rights by blocking the sale of numerous parcels of real estate. During discovery, the plaintiffs claimed the defendants failed to conduct a diligent search for responsive s based on the production of a mere two s. The court agreed with the plaintiffs and refused to allow the defendant to, throw up their hands and walk away, by 240

241 claiming they do not restore s. The court narrowed the scope of the search by custodian, time frame and keywords and ordered the defendant to prepare a search plan estimating the time and cost to perform the search. The defendant sought the help of a third party vendor, provided the court with an estimate and began the restoration process. Thereafter, the defendant produced over two thousand pages of responsive s. The plaintiff again claimed the production was inadequate and sought spoliation sanctions based on the defendant s destruction of evidence, arguing that the destruction was caused by the failure to implement a litigation hold or to alter its document retention procedures after the filing of the lawsuit. While the court agreed that the defendant was under a duty to maintain s and that they acted negligently when failing to implement a litigation hold, the court was not persuaded that the missing s contained evidence that would have been favorable to the plaintiff. The court therefore refused to issue adverse jury instructions or issue a default judgment against the defendant, but instead ordered the defendant to pay the costs associated with the preparation and argument of the motions. Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2007 WL (Fla. Dec. 12, 2007). In this underlying fraud case, a jury originally awarded the plaintiff $1.58 billion due to the defendant s willful destruction of and failure to comply with the court s production order. The award stemmed from the court s jury instruction sanction which made the jury aware of the defendant s attempt to thwart discovery. The defendant appealed and the state appellate court reversed the award in favor of the defendant based on the plaintiff s failure to prove compensatory damages. The plaintiff appealed and the Florida Supreme Court denied the petition for review. See also Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings, Inc., 2007 WL (Fla. App. 4th Dist. Mar. 21, 2007); Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL (Fla. Cir. Ct. Mar. 1, 2005). Great Am. Ins. Co. of New York v. Lowry Development, LLC, 2007 WL (S.D.Miss. Nov. 30, 2007). In this contract dispute, the plaintiff sought sanctions for spoliation of evidence, claiming the defendant willfully destroyed relevant electronic evidence which it had a duty to preserve. During his first deposition, the defendant testified that his computer crashed during a lightning storm and, was left with the computer repair service as it was unable to be repaired. The computer technician later testified that the computer was repaired and returned to the defendant. During his second deposition, the defendant offered no explanation for the contradiction but stated that the computer failed again after its return from the computer repair service, at which point he threw it away. As the plaintiff was able to establish the disposal of potentially relevant documents after the litigation began, the court determined that the plaintiff proved willful spoliation by clear and convincing evidence. The court held the appropriate sanction was to reduce the plaintiff s burden of proof on the issue of mutual mistake from clear and convincing evidence to a preponderance of the evidence. Vaughn v. City of Puyallup, 2007 WL (W.D.Wash. Nov. 6, 2007). In this termination suit, the plaintiff alleged he was constructively discharged from his employment with the police department. After serving the defendant with discovery requests, the plaintiff filed a motion to compel, requesting the court to order the defendant to instruct its employees to conduct a diligent search for responsive and relevant electronic documents, extend the discovery deadline and grant appropriate sanctions including the costs resulting from the alleged discovery violations. Finding the defendant fulfilled its duties and was not under a duty to comply with every discovery procedure requested by the plaintiff, the court denied the plaintiff s motion to compel and refused to impose sanctions. 241

242 Marketfare Annunciation, LLC v. United Fire & Cas. Ins. Co., 2007 WL (E.D.La. Nov. 5, 2007). In this lawsuit involving an insurance claim for damages resulting from Hurricane Katrina, the plaintiffs sought monetary sanctions and an adverse jury instruction. Prior to the close of discovery, the plaintiffs requested the defendants to produce relevant s and implement a litigation hold to preserve relevant electronic records. The plaintiffs then sought sanctions, contending a failure by the defendants to establish a mandatory litigation hold to lead to the loss of relevant electronic evidence and s from relevant key players. Finding inadequacy in the plaintiffs explanation for why this discovery matter was not pursued earlier, the court determined that the plaintiffs should have moved to compel production prior to seeking sanctions. Subsequently the court denied sanctions, as the plaintiffs had not demonstrated how the defendants violated a court preservation order. Bd. of Regents of the Univ. of Nebraska v. BASF Corp., 2007 WL (D.Neb. Nov. 5, 2007). In this breach of contract case, the defendant moved to impose sanctions against the plaintiff for violation of an earlier court order compelling document production. The defendant s request included full compliance by continued search and production of employee files, certification of full compliance by plaintiff, reproduction of witnesses for deposition as well as reasonable fees and expenses. The record revealed that the plaintiff continued to produce documents following the discovery deadline and an additional 6,000 pages following the deposition of the plaintiff s witnesses. In fact, one of the plaintiff s witnesses testified during his deposition that while the litigation was pending, he had not received a litigation hold notice but was rather encouraged to review and eliminate as many files as he could. The court determined that such lack of compliance with the motion to compel was not willful but that the plaintiff s counsel was far from diligent in complying with the order. The court held that as the litigation was pending at the time of the destruction, bad faith was not required for sanctions and ordered the plaintiff to pay for all costs and expenses associated in re-deposing witnesses and the filing of this motion. Hawaiian Airlines, Inc. v. Mesa Air Group, Inc., 2007 Bankr. LEXIS 3679 (Bankr.D.Haw. Oct. 30, 2007). In this trade secret misappropriations claim, the plaintiff motioned the court to sanction the defendant, alleging deliberate destruction of evidence that the defendant had a duty to preserve. Before the complaint was filed, the defendant s top officer installed program deletion software on his home computer and two laptops that permanently eliminated the residue of previously deleted files and changed the system clock. The court found the destruction to be intentional, deliberate, willful and in bad faith. Therefore, the court found spoliation and ordered an adverse inference that the evidence destroyed was unfavorable to the defendant. Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL (M.D.Fla. Oct. 25, 2007). In this case, the defendant moved to impose sanctions for spoliation and discovery abuses against the plaintiff or in the alternative, to reopen discovery. The plaintiff claimed that an employee deleted relevant and therefore they could not produce s responsive to the discovery requests. The employee claimed to have not received the litigation hold notice. The employee also claimed he deleted some in his inbox to clean it up but was unable to recall the subject matter of the deleted s. The plaintiff then conducted a forensic search of the employee s hard drive and produced responsive s not earlier produced. The court therefore denied the motion as the defendant failed to establish two elements of a spoliation claim, 1) the deleted was relevant to the litigation and 2) that it had not been already produced. John B. v. Goetz, 2007 WL (M.D.Tenn. Oct. 10, 2007). In this discovery dispute, the court granted the plaintiffs motion to compel and ordered the defendants to provide complete responses to the plaintiffs ESI requests, including all metadata and deleted information for any of the defendants key custodians. Additionally, the court ordered the defendants to file certifications 242

243 regarding whether ESI was removed from any state computer or personal computer provided by the state. Any managed care contractors (MCCs) were ordered to respond to ESI requests and if production was found inadequate, the plaintiffs were allowed to renew their motion to compel further production. Addressing the plaintiffs spoliation concerns, the court allowed the plaintiffs ESI expert to oversee the defendants production and inspect whether any changes were made to the defendants computer(s). Finally, the court ordered the defendants to respond as to why they should not be required to pay all production costs and attorney fees as provided in the order. APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS (N.D.Ill. Oct. 12, 2007). The plaintiff in this case brought suit against a former employee for trade secret misappropriation and breach of contract. Days after receiving the complaint, the defendant discarded his computer, resulting in the plaintiff moving for default judgment, sanctions and attorney s fees. Relying on its inherent power and Fed.R.Civ.P. 37, the court refused to enter default judgment but affirmed the plaintiff s motion for sanctions, finding the defendant acted in bad faith. The court also ordered the defendant to pay reasonable attorneys fees and costs associated with the plaintiff s motion, third party discovery required due to the computer destruction, and retention of the computer expert. In re ebay Seller Antitrust Litigation, 2007 WL (N.D.Cal. Oct. 2, 2007). In this antirust litigation, the plaintiffs moved the court to order the defendant to disclose its efforts to preserve and collect relevant electronically stored information (ESI). The plaintiffs sought information regarding the contents of the document retention notice as well as the names and job titles of the employees who received the notice. Finding the language of the document retention notice to be protected by attorney-client privilege, the court refused to give the defendants access to the document itself, but ordered a 30(b)(6) deposition to determine what employees were doing with respect to collecting and preserving ESI. The court also ordered the defendant to produce a list of names and job titles of the employees who received the notice. Qualcomm, Inc. v. Broadcom Corp., 2007 WL (S.D.Cal Sept. 28, 2007). In this patent infringement suit, the court issued numerous orders beginning with non-infringement of the patents at issue to most recently ordering the plaintiff s attorneys to show cause why they should not be personally sanctioned for discovery abuses. During one of the last days of trial, cross-examination of the plaintiff s witness revealed the existence of relevant s that the court later held were the tip of the iceberg in an attempt to conceal over 200,000 pages of relevant s. The court found by clear and convincing evidence that Qualcomm s counsel engaged in misconduct by providing calculatedly misleading and false discovery responses, asserting patently false statements of fact during motion hearings, minimizing the significance of missing at trial, continuing through post-trial activity. The judge characterized the discovery abuses as, an organized program of litigation misconduct and ordered the plaintiff s attorneys to demonstrate why they should not be sanctioned, without use of documents protected by the attorney-client privilege. See also Qualcomm, Inc. v. Broadcom Corp., 2007 WL (S.D.Cal. Aug. 6, 2007); Qualcomm, Inc. v. Broadcom Corp., 2007 WL (S.D.Cal. Aug. 6, 2007); Qualcomm, Inc. v. Broadcom Corp., 2007 WL (S.D.Cal. March 21, 2007). Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL (C.D.Cal. Sept. 18, 2007). In this contract dispute, discovery was a long, drawn out battle where the defendant repeatedly failed to comply with court ordered discovery. For over a year, the defendant responded to orders compelling production by repeatedly certifying they had fully complied without producing any correspondence, memoranda, , notes, work papers or litigation settlement documents. Relying on Tulip Computers Int l B.V. v. Dell Computer Corp., 2002 WL (D.Del. Apr ), the court ordered the defendant to retain an outside vendor to access servers and hard drives of specified employees and conduct keyword searches for responsive documents and e- 243

244 mails. The court also imposed monetary sanctions under Fed.R.Civ.P. 37(b)(2) and 26(g)(3) in the amount of $125,000. Peskoff v. Faber, 2007 WL (D.D.C. Aug. 27, 2007). In this ongoing discovery battle, unsatisfied with the defendant s compliance with discovery obligations, the court ordered the defendant to search all depositories of electronic information in which one could reasonably expect to find s where plaintiff s name appeared. The plaintiff claimed there was no from mid to mid-2003 in the defendant s original production with the plaintiff as recipient or sender or any with his name in the text. However the plaintiff maintained the same account from June of 2000 to April The court ordered an evidentiary hearing at which the defendant failed to appear, so the court construed his failure to comply with the order against him and proceed to other evidence. The defendant s counsel merely insisted any information not already produced was no longer in existence, so the court ordered the parties to seek estimates from experts for a search and production in tiff or pdf format to determine the importance of the discovery to the issue in the litigation Mother, LLC v. L.L. Bean, Inc, 2007 WL (W.D.Wash. Aug. 7, 2007). In a suit alleging false designation of origin, inter alia, the defendant motioned the court to sanction the plaintiff based on its failure to comply with an earlier discovery order requiring the plaintiff to produce all electronically stored information regarding its finances. In response to the motion, the plaintiff offered to forgo the claim for lost profits and continue only on the disgorgement claim and argued that the information sought could have been calculated from other information already in the defendant s possession. Realizing that the plaintiff s argument was made following a deposition, which was rescheduled due to the plaintiff being unprepared, and therefore disingenuous at best, the court granted the defendant s motion. The court ordered the plaintiff to pay reasonable expenses, costs and attorney s fees associated with the motion and ordered the lost profits claim stricken from the record. In re Kmart Corp., 2007 WL (Bkrtcy.N.D.Ill. July 31, 2007). In a Chapter 11 bankruptcy proceeding, Global Property Services, Inc. (Global) filed an administrative claim against the debtor, Kmart Corporation, for breach of contract and tortuous misconduct. Shortly thereafter, Global issued its first discovery requests and sought assurances that all responsive documents would be preserved and produced. After months of struggling to obtain responsive documents from Kmart, Global motioned the court to sanction Kmart for spoliation and violation of a previous production order. Kmart filed a response to the motion, noting that there was no contention Kmart had destroyed documents intentionally or in bad faith and that Global had failed to identify any trigger date for Kmart's duty to preserve evidence. The court applied a three step analysis requiring culpability, an obligation to preserve, and that the other party suffered prejudice as a result before ordering sanctions. The court reasoned that where the duty to preserve information is well known and the party fails to do so, they will be charged with a higher culpability. The court held that even though Kmart had a duty to preserve the relevant electronically stored information as of the date of the filing of the claim, its failure to do so was with mere fault, not willfulness or bad faith, and therefore refused severe spoliation sanctions. Finding a small element of prejudice, the court required Kmart to pay a portion of Global s attorney s fees and costs associated with drafting and presenting the motion. Doe v. Norwalk Cmty. Coll., 2007 WL (D.Conn. July 16, 2007). In this suit brought under Title IX of the Education Amendments of 1972, the plaintiff, claiming sexual assault by her college professor, motioned the court to sanction the defendants for discovery misconduct and spoliation of evidence. The plaintiff claimed that the defendants scrubbed or wiped the hard drives of relevant individuals and altered, destroyed, or filtered relevant data. For example, one witness s PST 244

245 file contained no deleted items and only one sent item. The defendants argued that their production was sufficient and further argued that scrubbing hard drives was their normal business practice and therefore they should be protected by the safe harbor of Federal Rule of Civil Procedure 37(f). The court held that in order to take advantage of the good faith exception in the new FRCP, a party needs to act affirmatively to prevent the system from destroying or altering information, even if such destruction would occur in the regular course of business. As the defendants failed to suspend their destruction process at any time and such destruction was not due to the routine operation of the information system, the court found the plaintiff was entitled to an adverse jury instruction with respect to the destroyed evidence as well as reimbursement for costs associated with filing the motion. United Med. Supply Co. Inc., v. United States, 2007 WL (Fed.Cl. June 27, 2007). In this contract dispute, the plaintiff sought spoliation sanctions based on the defendant s failure to preserve and produce relevant evidence. The defendant argued that as it acted in good faith, albeit negligently, the court was precluded from imposing such sanctions. For over four years, the defendant had neglected to contact the proper custodians to notify them of the litigation, let alone inform them of the preservation requirement. The court held that an injured party need not demonstrate bad faith in order for the court to impose spoliation sanctions, as the spoliation doctrine was not designed solely to punish those who consciously destroy documents, but also to address the manifest unfairness in the loss of relevant information. Therefore, based on the defendant s reckless disregard of its preservation duty, the court ordered a two facet sanction. First, the defendant was prohibited from cross-examining the plaintiff s expert regarding gaps in the record. Second, the defendant was ordered to reimburse the plaintiff for any additional discovery related costs because of the defendant s malfeasance and misrepresentations as well as costs incurred with this motion. Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2007 WL (N.D.Cal June 27, 2007). In this trademark case, the plaintiff sought terminating, evidentiary, and monetary sanctions from the defendant based on its alleged failure to preserve, collect, and produce documentary evidence. The plaintiff showed that no deposed employee recalled the existence of a preservation plan after the litigation ensued, that employees routinely deleted documents, and that the defendant confined its production to communications between the two companies, which were already in the plaintiff s possession. The defendant offered little rebuttal evidence. The court agreed with the plaintiff finding a willful indifference with regards to the defendant s discovery obligations. However, the court was unwilling to impose terminating sanctions and instead ordered evidentiary sanctions in the form of several judicially established facts and also ordered monetary sanctions in the form of a $15,000 sanction against the defendant. The plaintiff also argued the founder and CEO of the defendant s company destroyed and erased electronic data from certain computers upon his resignation. However, the court found that only a possibility remained that some relevant documents may have been lost as a result of this conduct, and the weight of the evidence did not support an inference that any wholesale destruction of relevant evidence took place at that time. In re Sept. 11th Liab. Ins. Coverage Cases, 2007 WL (S.D.N.Y. June 18, 2007). Following the terrorist attacks of September 11, 2001, numerous victims filed claims against the Port Authority of New York and New Jersey ( Port Authority ) as the owner and operator of the Twin Towers, and its lessee Westfield Corporation, which procured commercial liability insurance under the general name World Trade Center Properties LLC ( WTCP ) through Zurich American Insurance Company ( Zurich ). In the pending litigation, these parties sought indemnification and declaratory relief from Zurich. Zurich argued that neither the Port Authority nor Westfield were named insureds under the policy and refused to indemnify or pay out claims. Ultimately, Zurich 245

246 changed its position, and following dismissal of the case, Port Authority and Westfield moved for sanctions, alleging Zurich s position throughout the pleadings was objectively unreasonable in violation of Rule 11 of the Federal Rules of Civil Procedure ( FRCP ) and the discovery abuses violated FRCP 37. The court held Zurich and its counsel liable for $1,250,000 based on violation of both Rules. As Zurich deleted the electronic version of an essential document and possessed the paper version for over three years before producing it, the lease holders were successful in meeting the burden for the court to impose sanctions. The court determined the $1,250,000 was sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Greyhound Lines, Inc. v. Wade, 2007 WL (8th Cir. Apr. 24, 2007). In a suit arising from a vehicle collision, the defendants appealed the district court s decision not to issue spoliation sanctions against the plaintiff. The electronic evidence at issue was contained in an electronic recording device connected to the plaintiff s vehicle which stored information about the vehicle at the time of collision. After the collision, the plaintiff sent the device to the engine manufacturer who erased the electronic data contained on the device. The defendants argued that the duty to preserve the electronic data existed because litigation was likely to occur. The defendants also argued that discovery sanctions should have been issued since the plaintiff not only destroyed the data but notified the defendants of the data s existence only three months before trial in its interrogatory answers. The appellate court upheld the district court s refusal to issue spoliation sanctions, stating that the ultimate focus in imposing sanctions for spoliation is the intentional destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation. The court found that there was no proof that the plaintiff aimed to suppress the discoverable evidence. As to the discovery violations, the court found that the district court s refusal was also proper since the plaintiff s discovery answers were responsive and the defendants were not prejudiced by the untimely disclosure of the data s existence. World Courier v. Barone, 2007 WL (N.D. Cal. Apr. 16, 2007). In a case involving misappropriation of trade secrets, the plaintiff moved for monetary sanctions and adverse jury instructions against the defendant based on a claim of spoliation of evidence. The plaintiff alleged the defendant s husband destroyed a hard drive containing information related to the defendant s professional career and underlying suit against her. The defendant argued that she did not destroy the hard drive but that her husband was responsible for the destruction, and she cannot be held liable for his action since he was a non-party to the suit. The court held that the defendant was liable for the destruction of the hard drive since the affirmative duty to preserve evidence extends to instances when the evidence is not directly within the party s custody or control, so long as the party has access to or indirect control over such evidence. The court found it hard to believe that she was not in regular contact with her husband over the facts of the suit. It held that the defendant was knowingly willful or, at the very least, negligent in failing to prevent the destruction of relevant evidence by her husband. In order to compensate for the destroyed hard drive, the court awarded the plaintiff adverse jury instructions and monetary sanctions. Teague v. Target Corp., 2007 WL (W.D.N.C. Apr. 4, 2007). In a gender discrimination suit, the defendant brought a motion for sanctions against the plaintiff for spoliation of evidence, specifically seeking dismissal of the suit because the plaintiff disposed of her home computer after filing an EEOC claim against the defendant. The plaintiff s home computer contained evidence relating to her lawsuit against the defendant. The plaintiff claimed that she disposed of her computer after the hard drive crashed and was unable to be repaired by her brother. The court held that sanctions were appropriate since the computer contained evidence directly related to the plaintiff s claims and her efforts to mitigate her damages by finding another job after leaving 246

247 defendant s company. The court determined that she disposed of the computer with a culpable state of mind and that an adverse inference jury instruction at trial was proper. Univ. of Pittsburgh v. Townsend, 2007 WL (E.D. Tenn. Mar. 30, 2007). In a case where the plaintiff alleged that the defendants misappropriated the plaintiff s rights to medical scanning technology, the defendants moved the court to sanction the plaintiff for spoliation of evidence by excluding the testimony of the plaintiff s proposed experts. The defendants alleged that the experts and plaintiff s counsel destroyed copies of s and draft expert reports, to which they were entitled. The experts stated that they did not retain from the plaintiff s counsel because they were instructed not to do so by the plaintiff s counsel. The experts stated that they did not have the prior draft expert reports because they only worked from one copy. The court rejected the defendants argument and denied the request for sanctions. It ruled that although a draft an expert report may be discoverable under the Federal Rules of Civil Procedure, an expert need not preserve the drafts until the need to retain exists. Here, the experts and the plaintiff s counsel were not under an obligation to preserve the reports until the defendants subpoenaed records from the experts. Since the draft reports were destroyed prior to the creation of any obligation to retain, the court held that the destruction of the draft reports was not done intentionally, fraudulently, and with a desire to suppress the truth, and therefore, [was] not sanctionable. However, the court did hold that it was improper for the plaintiff s counsel to have instructed or otherwise suggested to the experts that all s be destroyed, as they were the subject of multiple discovery requests. The plaintiff s counsel apologized for the error, and the court did not issue sanctions. Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings, Inc., 2007 WL (Fla. App. 4th Dist. Mar. 21, 2007). In this landmark electronic discovery case, the Florida state appellate court reversed the $1.58 billion judgment against Morgan Stanley in the litigation brought by Coleman (Parent) Holdings. The court reversed the judgment upon the grounds that the plaintiff failed to prove compensatory damages. The plaintiff did not establish the actual value of the stock on the date of the merger, and the court held that the jury must not speculate as to the stock value. The court did not reach a decision on whether the trial court improperly entered a partial default against Morgan Stanley as a sanction for discovery misconduct since the sale of stock decision was dispositive of the case. The court reversed both the compensatory and punitive damage awards and remanded the case to enter judgment for Morgan Stanley. The dissent firmly stated that the lower court's issuance of e-discovery sanctions was legal error by the court and the jury is best equipped to award punitive damages. Claredi Corp. v. SeeBeyond Tech. Corp., 2007 WL (E.D. Mo. Mar. 8, 2007). In a breach of contract claim, the plaintiff moved the court to order sanctions against the defendant for discovery misconduct. The plaintiff requested and documents from the defendant related to its dealings with competitors in the field. The defendant vehemently denied the existence of any e- mails or agreements with third parties and refused to search its systems or archived databases. The plaintiff obtained records from the third-party competitors and discovered that the defendant had, in fact, communicated and contemplated agreements with the third-party competitors. The plaintiff argued that sanctions in the amount of $317,000 should be awarded to cover the plaintiff s fees and expenses in bringing the discovery motions. The defendant argued that the plaintiff s claims were merely a boy crying wolf, unnecessarily taking up the Court's time on baseless accusations. The court agreed with the plaintiff and issued sanctions because the documents were material to the plaintiff s case, finding the defendant s discovery compliance to be dilatory and inadequate. The court stated that the case was filed almost two years ago and the defendant has yet to run appropriate searches on its archived database for responsive documents, a search that should have been completed long ago. The court awarded the plaintiff 247

248 $54,000 for its fees and costs related to bringing the motion to compel and issued sanctions in the amount of $20,000. School-Link Techs., Inc. v. Applied Res., Inc., 2007 WL (D. Kan. Feb. 28, 2007). In a contract dispute, the plaintiff sought sanctions against the defendant for its failure to implement a litigation hold to preserve relevant documents in the custody of one of its key employees and for its failure to adequately search for and gather responsive discovery documents. The key employee testified that she was never contacted by the defendant to search for relevant documents but that she searched her own computers under her own accord. The defendant eventually produced the employee s files from her computer and they were merely duplicative of already produced documents. The court, despite finding that the defendant breached its duty to preserve evidence, refused to order sanctions, as there was no showing that the breach caused relevant documents and information to be destroyed. With regard to the plaintiff s inadequate search claims, the court ordered the defendant to assure the plaintiff that all employees documents and computer files had been produced. The court also ordered the defendant to produce an identical copy of the memory stick used to save the key employee s documents to ensure that all information had actually been produced. Qantum Comm. Corp. v. Star Broad., Inc., 2007 WL (S.D. Fla. Feb. 9, 2007). The plaintiff brought an action against the sellers of a radio station, alleging breach of the purchase agreement and seeking specific performance. The plaintiff filed a motion for sanctions and default judgment based on the defendant s failure to produce key "smoking-gun" documents during discovery. Specifically, the plaintiff noted an instance where the defendant produced an without the corresponding attachment. The defendant stated in deposition testimony that the attachment was withheld because it was not relevant to the suit. The plaintiff obtained the smoking gun and attachment, which directly contradicted the defendant s testimony, from a thirdparty. The defendant argued that it did not delete in bad faith but rather as part of an ongoing business practice to purge due to the limited amount of computer storage space. Furthermore, the defendant claimed that he did not have the and attachment prior to his deposition to refresh his memory and all testimony was given to the best of his un-refreshed memory. The court ordered monetary sanctions and default judgment against the defendant because of the discovery misconduct and other bad faith actions. The court held that the withheld s prejudiced the plaintiff since it hampered the ability of plaintiff to present its claim on the central issue of this case. A later hearing was scheduled to determine the amount of costs and specific performance damages. Floeter v. City of Orlando, 2007 WL (M.D. Fla. Feb. 9, 2007). In case involving a sexual harassment claim, inter alia, the plaintiff filed a motion for sanctions against the defendant for destruction of evidence. The plaintiff requested various documents from the defendant; however, the hard drives in the defendant s possession had been previously replaced and sold as new computers were purchased for employees. The backup tapes containing the relevant s were also overwritten per department policy. The plaintiff argued in favor of sanctions because the defendant ignored its duty to preserve data when litigation was reasonably foreseeable. The defendant argued that its duty to preserve or hard drive data did not occur until the discovery requests were served and any prior destruction was done in accordance with good faith procedures. The magistrate ruled that sanctions were not appropriate against the defendant. It held that the duty to preserve the hard drives may have arisen when the complaint was served but failure to follow the duty was immaterial since the missing documents were not crucial to the plaintiff s case. The documents were not crucial because other evidence existed which demonstrated the same information as would have been found in the deleted s. Furthermore, 248

249 the court determined that the destruction by the defendant was not performed in bad faith because of the pre-existing procedures to overwrite data on its backup tapes and hard drives. In re NTL, Inc. Sec. Litig., 2007 WL (S.D.N.Y. Jan. 30, 2007). In a class action claim involving federal securities law violations, the plaintiffs moved for sanctions against the defendant, alleging that the defendant deliberately destroyed and allowed spoliation of s and other electronically stored information. The defendant company fell into bankruptcy before this suit and emerged from bankruptcy with two distinct subsidiaries conducting business on behalf of the defendant. After bankruptcy, many electronically stored documents and s were lost or destroyed when the company emerged split into the two new companies. The plaintiffs argued that one of the new entities had a duty to preserve and produce s created and saved during the previous company s existence. The defendant argued that it had no duty to preserve the information because the possibility of litigation could not have been foreseen prior to the bankruptcy of its parent company. It further argued that it had no responsibility to preserve any of its electronic documents sent from the parent company prior to the current suit. The court concluded that defendant s duty to preserve actually started when litigation was foreseen by former company even though most of the documents and ESI ended up in the physical possession of new companies. The court found that the defendant s failure to preserve relevant documents and ESI was grossly negligent and that it reasonably should have known to preserve all documents from the parent company and issue a proper litigation hold that spanned across the old company and the new companies. The court granted the motion for an adverse inference instruction and ordered the defendant to pay attorneys fees and costs. Williams v. Sprint/United Mgmt. Co., No (D. Kan. Jan. 23, 2007). On remand from the district court judge, the magistrate issued an order explaining his reasons for denying sanctions against the defendant for failure to produce documents in their native format. In this employment discrimination claim, the plaintiffs filed a motion for sanctions against the defendant for failure to produce several spreadsheets which were originally produced in hard copy. The plaintiffs argued that the Federal Rules of Civil Procedure compelled the defendant to produce documents in their native format despite an earlier agreement between the parties stating that the parties could produce documents in a non-native.tiff format. The defendant argued that they attempted, in good faith, to produce the spreadsheets in a native format as quickly as possible and did not delay production of the documents in order to gain a tactical advantage. The magistrate judge agreed with the defendant and held that there was no evidence of bad faith on part of the defendant because it gave reasonable explanations as to any delay and impossibility of producing native format documents. Further, the court found that the unique circumstances of the discovery disputes demonstrate that there was no bad faith. The court also held that any duplicative production of documents occurred only as a result of the plaintiffs multiple discovery requests and not as an intentional tactic by the defendant used to confuse or frustrate the plaintiffs. Phillips v. Netblue, Inc., 2007 WL (N.D. Cal. Jan. 22, 2007). In a dispute involving spam messages sent to the plaintiff through , the defendants brought a motion for sanctions against the plaintiff for not preserving the s that were subject to the suit. In producing evidence to the defendants, the plaintiff did not preserve the hyperlinks contained in the spam e- mail. The hyperlinks in the spam tell an recipient s computer what web address to contact in order to download and display certain images. The defendants argued the links initially received in the spam messages were no longer active and that the plaintiff had a duty to preserve not only the s but the images as displayed by the links attached to the . The plaintiff argued that it was under no duty to memorialize the s as displayed to a user would, but only that they preserve the s as sent by the sender. The court denied sanctions against the 249

250 plaintiff stating that the absurdity of [the defendants ] argument is patent. The defendants argument is not based on the plaintiff s failure to preserve evidence but upon the plaintiff s failure to gather evidence. The court noted that a plaintiff does not have a legal duty to gather evidence for a defendant. The defendants request was for information that is beyond what is contained in the actual . The plaintiff fulfilled its discovery duties by disclosing the as seen by the plaintiff and did not have control or custody of the requested information. May v. Pilot Travel Centers LLC, 2006 WL (S.D. Ohio Dec. 28, 2006). In a wrongful termination case, the plaintiff moved for spoliation sanctions against the defendant for failing to produce and preserve relevant evidence. The defendant failed to produce electronic documents such as , invoices, and payroll records which were central to the plaintiff s case. The defendant claimed not to have the information but eventually produced some, but not all, of the requested records after the motion for sanctions was filed. The defendant argued that the plaintiff provided no proof that it destroyed evidence and the sanctions should be denied. The defendant also argued that it did not have a duty to supplement discovery disclosures because the plaintiff did not request supplementation during the discovery period. Not satisfied with the defendant s arguments, the court concluded that sanctions were appropriate. The defendant s production of some of the records shortly after the motion was filed was evidence of the defendant s bad faith. Additionally, the burden to prove no destruction occurred was on the defendant since it was in control of the evidence at issue and the burden should not shift to plaintiff. PML N. Am., LLC. v. Hartford Underwriters Ins. Co., 2006 WL (E.D. Mich. Dec. 20, 2006). In this fraud case, the plaintiff filed for default judgment sanctions against one of the defendants for failure to preserve electronic evidence and bad faith destruction of documents. The defendant failed to produce a USB drive and backup servers and produced a badly damaged hard drive from a vital computer in the case. The damaged hard drive showed evidence that the computer casing had been opened and the hard drive removed with a screwdriver. A computer forensic expert testified that the computer had been tampered with and that because of the tampering no electronic data could be harvested from the key piece of evidence. The plaintiff argued that such failure to produce the information and the badly damaged hard drive was evident of willful, bad faith spoliation. The defendant did not produce any logical explanation for the damaged computer or the lack of production of the thumb drive and backup servers. The court agreed with the plaintiff s argument and found evidence that the hard drive belonging to the defendant was tampered with before production. The court held that the hard drive was proof of the defendant s willful and intentional destruction of evidence and that default judgment was proper since all parties were substantially prejudiced. Furthermore, the court ordered the defendant to pay all attorney s fees and costs. Wachtel v. Health Net, Inc., 2006 WL (D.N.J. Dec. 6, 2006). In a class action suit, the plaintiffs sought sanctions, including default judgment, against the defendant for failure to retain, search and produce and other electronic documents. Several discovery orders had been issued over the last five years compelling the defendant to produce electronic records, with which the defendant failed to comply. Eventually, approximately 20,000 previously undisclosed documents were produced by the defendant after several years of discovery orders. The defendant also failed to search backup tapes for and failed to properly preserve any other during litigation. The defendant had an automated deletion program but failed to alter the program or search for any deleted on backup tapes until three years into litigation. The court held that it would not issue a default judgment as a sanction despite the defendant s illicit bad faith in discovery. However, the court allowed monetary penalties, adverse inferences, and payment of plaintiff s costs as sanctions. 250

251 Exact Software N. Am., Inc. v. Infocon, Inc., 2006 WL (N.D. Ohio Dec. 5, 2006). In a collection action by the plaintiff, the defendant sought sanctions for the plaintiff s failure to produce and preserve electronic evidence. The defendant argued the plaintiff completely failed to produce adequate reasons for the non-production of electronic documents. Additionally, the defendant argued the plaintiff deleted electronic documents before and after litigation started. The plaintiff failed to respond to the allegations of deliberate spoliation. The court ruled sanctions and default were likely against the plaintiff since it completely failed to produce any adequate excuse as to why electronic evidence was not produced or preserved. However, the court ruled it could not issue a default judgment because it was unclear who was at fault for the discovery mishaps. The court found that it could not ascertain whether the discovery misconduct was due to willfulness or bad faith on the part of the plaintiff, its counsel, or both, and set a hearing at which the plaintiff would have an opportunity to show cause why it should not be sanctioned. JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2006 WL (S.D. Ohio Nov. 14, 2006). In a claim under the UCC, the plaintiff filed a motion for sanctions and a motion to compel discovery. The defendant failed to properly answer an interrogatory question that directly related to its motion for of dismissal based on the defendant s lack of jurisdiction. The defendant claimed the plaintiff lacked jurisdiction and the plaintiff asked for information in discovery to support that contention. Throughout the litigation the defendant failed to answer the interrogatory and failed to give information regarding its research of the issue during multiple depositions. The plaintiff argued that it was only in search of information from the defendant s electronic database of client names to determine their residency and whether the clients were in fact within the plaintiff s jurisdiction. The defendant asserted that it lacked knowledge of the information and could not produce the evidence. It also claimed that it would research the issue and during a subsequent deposition, a key defense witness stated he forgot the research results and would supplement the plaintiff later. However, he never did. The court ordered the defendant to produce their electronic database of clients to the plaintiff and noted that the defendant has engaged in exactly the type of gamesmanship which is expressly prohibited by the Federal Rules of Civil Procedure and universally condemned by the applicable case law. The court also ordered the defendant to pay the plaintiff s attorney s fees and costs. Optowave Co. v. Nikitin, 2006 WL (M.D. Fla. Nov. 7, 2006). In a contract dispute, the plaintiff alleges that the defendant deleted relevant s with bad faith. The s were saved on the hard drives of several workplace computers and contained evidence relevant to the contract dispute. After litigation started the defendant reformatted the company server using an outside consultant who erased several relevant s. Evidence also showed that several s in a key employees sent box were deleted. The court determined that the loss of evidence could have only come about through the intentional acts of the defendant. The court ordered adverse jury instructions at trial as a sanction for intentional spoliation of evidence. In Re Napster, Inc. Copyright Litigation, 2006 WL (N.D. Cal. Oct. 25, 2006). In a copyright infringement matter, the plaintiffs alleged a Napster investor willfully deleted relevant e- mail so the court should issue an adverse inference instruction and default judgment on some of the claims. The investor argued they did not have a duty to preserve the s in question because they were not a named party to any Napster litigation at the time nor did they reasonably expect to be a part of any litigation related to Napster. The court disagreed and determined that as investors, the president of the company knew prior to the commencement of this litigation, they could be named as a party in the suit and be required to produce documents. Although the court did not find the investor willfully destroyed , it determined that it was grossly deficient in its 251

252 attempt to preserve any evidence. Default judgment was not ordered; however, adverse inferences and monetary sanctions were awarded. Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL (E.D. Mich. Sept. 28, 2006). The plaintiff sought sanctions against the defendant for bad faith destruction of relevant documents and s. The defendant in this case was a competitor of the plaintiff in the sporting goods business. The defendant hired a former employee of the plaintiff after he voluntarily ended his employment with the plaintiff. When the employee left the company, he forwarded several confidential documents from the plaintiff s company account directly to his personal Yahoo! account. A computer forensics expert determined the employee opened the documents on his home computer, and several of the confidential documents were also found on a computer issued to the employee from his new employer. Upon the filing of the plaintiff s lawsuit, the employee cancelled his Yahoo! account, thereby causing all s stored on the account to be destroyed and unrecoverable. The plaintiff motioned the court to issue sanctions in the form of dismissal for bad faith destruction of key documents after litigation commenced. The defendant argued no knowledge of the stolen trade secrets from the plaintiff and alleged the employee transferred and deleted the files on his own. The court found the employee destroyed wrongfully obtained records when he cancelled his personal account with Yahoo!. The court did not find enough evidence to prove the defendant willfully and in bad faith supervised or instructed the destruction of the trade secrets. However, the court did find the defendant negligent in its failure to preserve relevant evidence from its employee. The negligence by the defendant did not warrant a dismissal of the case as the plaintiff urged, but the court ruled a negative inference may be allowed at trial because it should have done more to detect and preserve relevant data under [the employee s] control. Crandall v. The City and County of Denver, 2006 WL (D.Colo. Sept. 19, 2006). In a case involving exposure to harmful chemicals, the plaintiffs sought sanctions against the defendant for deleting before and during the litigation. Specifically, the defendant s protocol automatically deleted s every seven days. The defendant did not change the server s protocol until six months after litigation started, resulting in the deletion of many relevant s. However, the defendant purchased data recovery software and recovered 91,000 deleted s. The plaintiffs still allegeded several relevant s were destroyed which could never be recovered and the missing s severely prejudiced their case. The defendant argued no relevant s were destroyed and it took substantial steps to recover any deleted s. The plaintiffs urged the court to create a presumption in favor of spoliation whenever a moving party can prove that records that might have contained relevant evidence have been destroyed. The court declined to create a legal presumption in favor of spoliation. Instead, it re-opened discovery and allowed the plaintiffs to depose two persons having knowledge of the system. It also allowed the plaintiffs to have a computer expert examine the defendant s system. The court found that because the plaintiffs were not prejudiced by loss of the alleged data, sanctions in the form of adverse inferences and fees and costs would not be assessed on the defendant. The court stated the defendant may file another motion if new evidence was discovered. Marwaha v. SBC Global Services, Inc., 2006 WL (N.D. Ohio Oct. 6, 2006). In an employment discrimination suit, the plaintiff motioned the court to sanction the defendant for failure to produce a particular during discovery. The plaintiff attempted to negotiate with the defendant about the production of an not originally demanded by the plaintiff in initial discovery requests. The plaintiff stated they would not file a motion to compel the production of the relevant if the defendant stipulated to certain facts, which would be proven by the . The defendant did not stipulate to the agreement and the plaintiff brought a motion for sanctions 252

253 based on the defendant s failure to follow thorough with the informal agreement. The court ruled there was no evidence the defendant agreed to the informal agreement and even if they had agreed, the court stated they cannot be called upon to police such ambiguous agreements. The court also stated the request for the was beyond the scope of the plaintiff s discovery requests, and it could not be compelled for production. Arista Records v. Tschirhart, 2006 WL (W.D. Tex. Aug. 23, 2006). In a copyright infringement case involving the illegal downloading of music from the internet, the plaintiff motioned the court to award default judgment against the defendant for deletion of key computer records. The defendant was required to produce her computer for inspection two times to determine if songs had illegally been downloaded from the internet. However, once the defendant eventually produced her computer, a computer forensics expert determined that wiping software was run shortly before and after production was ordered. The defendant argued that she merely ran a defragmentation program which comes installed on most computers and is run automatically. However, the plaintiff argues that the defragmentation was performed at key moments in the litigation and was not indicative of a program running a monthly or weekly scan. The court held that the timeliness of the data deletion was consistent with intent to destroy. The defendant argued sanctions should be sufficient to prevent the destruction of any more evidence in the case. However, the court found no other relevant evidence existed that the defendant could destroy. Therefore, the court held that only an order for default judgment would be fair since key evidence was missing and without it, only piecemeal evidence would remain which greatly prejudiced the plaintiff in presenting its case. United States v. Tamez, 2006 WL (S.D.N.Y. Oct. 5, 2006). A judge s sentence for a defendant convicted of embezzlement, inter alia, was increased by two levels for obstruction of justice -- namely the defendant s deliberate deletion of from a workplace-issued laptop. A computer forensics expert determined the defendant, a high-ranking DEA official, deleted incriminating s and files from his government computer shortly after the DEA informed him that he was placed on administrative leave for suspicion of embezzlement. The defendant filed a motion asking the court to set aside the upward departure from the sentencing guidelines because the s were not deleted deliberately. He argued that he only deleted the files because of department policy requiring departing employees to return laptops in the same condition in which they were issued. The defendant further argued his personal AOL log in information was only deleted to prevent others from obtaining his personal information. The court, however, found defendant s arguments patently absurd. There was no doubt that defendant was intentionally seeking to destroy this evidence to interfere with the investigation. By deleting the files--some of which have not been recovered in usable form or at all--he impeded the Government s investigation. The upward departure of two levels in sentencing was affirmed by the court. In Re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006). During a grand jury investigation, the court reviewed objections to the grand jury s subpoena requiring a newspaper publisher to produce four computer workstations and two hard drives. The newspaper eventually produced the four computer workstations pursuant to the subpoena but refused to produce the two hard drives. The lower court held the newspaper in contempt and imposed a $1,000 per day sanction for failure to comply with the subpoena. The newspaper filed an emergency application for review of the grand jury s subpoena with the state supreme court. The newspaper argued the subpoena s requirement for the hard drives was overly broad. It further argued that production of hard drives is much like producing an entire file cabinet filled with files. Furthermore, the newspaper stated such production would produce a chilling effect on many of the newspaper s confidential sources for news stories since their identities may be revealed during 253

254 the investigation. The state countered by asserting the only information desired was the internet browsing history of several employees and assuring any confidential information would be safeguarded from disclosure. In vacating the lower court s sanctions for failure to comply, the state supreme court held that the state s particular method of disclosure is unduly intrusive in the circumstances presented. The court agreed with the newspaper s argument and further held that entire filing cabinets cannot be extracted and held by the government under the guise of a grand jury subpoena when the result could be the disclosure of confidential information vital to the newspaper s business. Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006). In a discrimination suit based on an ADA claim, the plaintiff appealed sanctions against him for evidence spoliation involving the deletion of 2,200 files from his work-issued laptop. The defendant s computer forensic expert determined the plaintiff intentionally wiped the laptop s hard drive before turning it over to defendant for examination. The plaintiff admitted to running a program designed to delete any files from the unallocated space on his hard drive but argued that the deletion was only performed to protect his privacy interests. The court, however, stated the plaintiff had ample notice to preserve any relevant evidence and the files he destroyed were not merely private and were potentially relevant to the litigation at hand. The appellate court determined that the district court did not abuse its discretion when determining that the plaintiff acted in bad faith in destroying electronic files and that defendant was prejudiced because of such destruction. The court agreed further that lesser sanctions would not be useful since any attempts to rectify the harm done by plaintiff would be futile. 3M v. Tomar Elec., 2006 WL (D. Minn. Sept. 18, 2006). In a patent infringement case, the district court upheld the magistrate s decision to award sanctions based on the defendant s discovery insufficiencies. In this case, the defendant repeatedly gave false testimony regarding the existence and content of relevant s of employees within his company. In addition, the defendant failed to inquire into whether other employees had potentially relevant material, but merely looked at his own and files. The court found the defendant should have conducted a reasonable inquiry into whether employees had documents or information responsive to 3M's request and that he should have instigated a litigation hold after being notified of this litigation. The court held that such deliberate failure to comply with any rules of discovery warranted sanctions that included: adverse jury instructions, negative inferences to the jury and monetary sanctions to cover the costs of the plaintiff in bringing the motions related to the discovery and any future depositions needed to correct the defendant s withholdings. Plasse v. Tyco Elec. Corp., WL (D. Mass. Sept. 7, 2006). In a wrongful termination suit, the defendant claimed that the plaintiff had misrepresented his credentials when applying for the position. When the defendant indicated that it would be requesting to inspect the laptop used to create the resume, the plaintiff accessed his resumes and cover letters and modified the documents electronic properties. However, after a computer forensics expert recovered the deleted metadata and discovered the plaintiff s alterations, the court ruled that Plaintiff has destroyed or concealed evidence, engaging in an egregious pattern of misconduct that has hampered the proceedings in this case. It also noted that Plaintiff's explanation for this behavior is more than unconvincing; it verges on the absurd. The court granted defendant s motion to dismiss and for sanctions. Ridge Chrysler Jeep, LLC v. Daimler Chrysler Servs., 2006 WL (N.D. Ill. Sept. 6, 2006). A court dismissed with prejudice plaintiffs racial discrimination claims when it found that plaintiffs consistently lied in affidavits and deposition testimony regarding the location of evidence, including electronic evidence, found on computer hard drives and backup tapes. The court also 254

255 found that plaintiffs failed to properly preserve relevant financial records found on these computers and backup tapes. In dismissing the plaintiffs claims because monetary sanctions would not suffice to repair the harm inflicted on this case and on the judicial system as a whole, it declared: [t]hese are not the actions of truth-seeking individuals intent on having their day in court, but rather, sleight of hand tactics of manipulators seeking to use the federal court system to their own advantage. O Brien v. Ed Donnelly Enters., 2006 WL (S.D. Ohio Sept. 5, 2006). In a wage and hour claim against a former employer, the employee plaintiffs sought sanctions against the defendant employer for deliberately destroying discoverable documents. Plaintiffs argued that defendant destroyed records with a culpable state of mind. The documents in question were time card records printed out routinely and backed-up on defendant s in-house server. Defendants acknowledged that, while they intended to keep all time card records, they were not able to locate the records for a small fraction of the days for which the plaintiffs requested documents. Defendants stated that they did not realize until after the lawsuit was filed, that the records were missing. Defendants contended that, the records were created (and the electronic information overwritten) well before th[is] lawsuit was filed. The court denied plaintiffs motion for sanctions finding that the destruction or loss of evidence occurred before defendant had notice of the litigation and there was no evidence of intentional destruction. Moreover, the court ruled that plaintiffs perception of the deficiencies of defendants electronic record-keeping [was] simply irrelevant. Frey v. Gainey Transp. Servs., Inc., 2006 WL (N.D. Ga. Aug. 22, 2006). The plaintiff in a personal injury suit filed a motion for sanctions against defendant for failing to preserve satellite tracking information despite plaintiff s preservation letter to defendant before litigation started. The plaintiff s attorney sent defendant a 15-page letter 10 days after his client s accident demanding that defendant preserve certain evidence despite the fact that litigation had not started. Plaintiff claims that defendant failed to preserve electronic satellite information that tracks the location of defendant s drivers. The information is automatically deleted 90 days after it is saved on a server, and the requested information was deleted in the normal course of business. The court held that sanctions should not be issued because plaintiff was not prejudiced by lacking the evidence and that defendant did not destroy the evidence with bad faith even though it received plaintiff s letter. The court stated that it is difficult to allow a potential plaintiff to make an end run around the Federal Rules of Civil Procedure by filing a preemptive spoliation letter. Recinos-Recinos v. Express Forestry, Inc., 2006 WL (E.D. La. Aug. 11, 2006). In a class-action suit, plaintiffs filed a motion to compel for sanctions and for contempt against defendants for withholding documents, misrepresenting their availability throughout the entire litigation process, and for deliberate spoliation of evidence. Defendant claimed to have lost several key requested documents stored in an electronic form due to Hurricane Katrina. Defendant claimed to have lost these key documents because they were moved from the main Arkansas business office to defendant s Mississippi beach house on the Gulf of Mexico at the height of hurricane season. The court found that even if this unwise move of key documents to a susceptible area was not deliberate, it was, in the least, negligent and worthy of sanctions based on a failure to properly preserve documents. The court also discovered that several key officers of the defendant company lied during depositions and that the entire litigation was filled with defendant s resistance towards any discovery requests. The court chastised defendant, To date, trial preparation has been accomplished only through plaintiffs' Herculean efforts bolstered by staccato motions to compel and a corresponding series of orders compelling production of responsive documents and/or 255

256 information because [d]efendants have continually flouted the orders of this Court. The court imposed monetary sanctions in the form of attorneys' fees plus expenses necessarily incurred. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL (M.D. La. July 19, 2006). The court awarded monetary sanctions against a defendant company for failing to preserve electronic evidence. The court established that the defendant s litigation hold came too late in the litigation process because the company issued the hold policy after litigation had already started instead of when it was reasonably anticipated. Furthermore, the court found that the scope of the hold was not broad enough and did not prevent certain key employees from inadvertently discarding relevant information. Although the defendant had a litigation hold policy in place, the court ruled that defendant s policy was not adequate enough to fulfill preservation requirements. Plaintiff motioned the court to impose sanctions in the form of adverse jury instructions, but it declined to do so since there was no evidence that the spoliation occurred with malice or bad faith. Instead, the court issued monetary sanctions to compensate plaintiff for costs and fees related to discovering the spoiled evidence. Samsung Elecs. Co., Ltd. v. Rambus, Inc., 439 F.Supp.2d 524 (E.D. Va. 2006). In a patentinfringement case, the court refused to award attorney fees against the defendant for the spoliation of relevant evidence, finding the sanction inappropriate under either 35 U.S.C. 285 or the court s inherent power. However, relying on substantial documentation of the defendant s spoliation that was developed through discovery in two other cases, Rambus v. Infineon and Hynix Semiconductor, Inc., the court found the defendant implemented a document retention policy to justify destroying relevant patent infringement claims when the defendant anticipated, or reasonably should have anticipated, litigation with the plaintiff. The court found the defendant s vague litigation hold instruction to not destroy relevant documents did not satisfy preservation obligations in light of several factors, including: the large volume of documents destroyed, the extent and kind of evidence destroyed following the hold, the failure of the instruction to specify which documents were relevant to litigation, and the fact that the defendant had maintained no records of documents that were destroyed. In addition, the court offered guidance on how companies can comply with their preservation duties by modifying document retention policies already in existence. The court instructed companies to inform its officers and employees of a pending litigation and identify for them the kinds of documents considered relevant, in addition to collecting and segregating relevant documents. The court observed a company cannot make a document retention program an integral part of its litigation strategy and, pursuant thereto, target for destruction documents that are discoverable in litigation. ADF Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL (M.D. Fla. July 19, 2006). In this suit filed to enforce a patent infringement settlement agreement, the court granted the plaintiff s motion for Rule 37 sanctions against the defendant for failing to comply with the court s order to produce responsive documents. In seeking sanctions, the plaintiff argued the defendant s production efforts were sparse at best, having received only a limited number of financial documents and no . While admitting to only producing five s during the initial disclosure, the defendant maintained it had since provided the plaintiff with 2,000 pages of electronic documents from its system. The defendant argued the documents had been obtained after a detailed and exhaustive keyword search resulting in over 17,000 potentially relevant documents which had to be organized, compiled, reviewed, Bates stamped and converted into the appropriate format. However, the defendant failed to provide sworn affidavits supporting its assertion that the delay in production was necessary to avoid undue burden and expense. The court found the defendant s argument without substantial justification, and issued a 256

257 sanction in the amount of $1,500 against the defendant as a reminder for parties and their counsel to cooperate when conducting litigation. Cardenas v. Dorel Juvenile Group, Inc., 2006 WL (D. Kan. June 1, 2006). In this product-liability case, the plaintiffs sought sanctions under FRCP Rule 37 against the defendant for providing false responses to discovery requests, failing to supplement discovery requests, failing to comply with a court order compelling discovery and for withholding a crucial document damaging to the defendant s case. The plaintiffs first learned that the defendant had failed to provide a key document when they examined communications contained in an internal , produced in response to other discovery requests. Although the defendant produced the document after the plaintiffs specifically requested it be turned over, the plaintiffs asserted they were unfairly prejudiced by the document s untimely production. The plaintiffs moved the court to prohibit the defendant from asserting affirmative defenses, in effect granting a default judgment, or alternatively, to issue adverse inference jury instructions against the defendant. However, the court found the sanctions requested by the plaintiff to be unwarranted, as the defendants had not withheld the key document willfully or in bad faith. Still, the court observed, parties cannot be permitted to jeopardize the integrity of the discovery process by engaging in halfhearted and ineffective efforts to identify and produce relevant documents. Finding that the defendant s counsel were under obligation to review all documents in their possession to determine the existence of other potentially relevant undisclosed documents, the court awarded the plaintiff reasonable attorney s fees and expenses incurred as a result the defendant s noncompliance and untimely production. Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL (S.D.N.Y. May 23, 2006). In a case involving breach of fiduciary duty, fraud and misrepresentation, the plaintiff brought a motion for sanctions against defendants and their counsel for spoliation and late production of evidence. Despite notice of potential litigation, the defendants abandoned ten computer workstations containing relevant information at a former office location. Defendants also failed to timely identify and produce approximately 25 gigabytes of data stored on a server that was still in their possession, initially asserting to their own counsel there were no electronic files to search. The court found the defendants grossly negligent in abandoning the workstations and at least negligent in their representations to counsel regarding the absence of any files to be searched. The court also held that defense counsel had been grossly negligent in their failure to conduct an independent inquiry to verify the accuracy of those representations. Granting plaintiff s motion in part, the court declined to issue an adverse inference instruction or preclude the defendants from making a summary judgment motion, but awarded monetary sanctions and ordered the defendants and their counsel to bear the costs equally. Krumwiede v. Brighton Assocs., L.L.C., 2006 WL (N.D. Ill. May 8, 2006). In an employment lawsuit, the defendants sought a default judgment against the plaintiff for destroying relevant computer data. The plaintiff insisted that the data had not been intentionally destroyed, arguing that the files probably still existed on the defendants laptop with only minimal alterations in the files' metadata fields. However, a neutral computer forensic expert analyzed the laptop and concluded that the combination of a court order violation, deliberate movement of file data, admitted deletion activities, multiple use of defrag, use of ZIP file to conceal or transport [the defendants ] data, [and use of] multiple USB devices... [establishes that] [the plaintiff] did intend to destroy evidence and did intend to conceal the existence and/or movement of data. Issuing a default judgment against the plaintiff, the court found the plaintiff had continued to delete, modify and access thousands of files despite knowing the laptop was subject to a litigation hold. The court declared, [this] will send a strong message to other litigants, who scheme to abuse the discovery 257

258 process and lie to the Court, that this behavior will not be tolerated and will be severely sanctioned. Vela v. Wagner & Brown, Ltd., 2006 WL (Tex. App. Apr. 19, 2006) substituted opinion and aff d by 203 S.W.3d 37 (Tex. App. 2006). Asserting a cross-appeal in an oil and gas case, the appellee challenged an award of $75,000 in monetary sanctions for spoliation of computer data and discovery abuse. The appellee argued, inter alia, it did not have a duty to preserve the computer data at issue, the data was not intentionally or negligently destroyed, and the appellants were not prejudiced by the absence of the data. During discovery, the appellee had failed to produce its testifying expert s underlying computer data work product. The appellee claimed the data had been stored on the expert s computer, which had been inadvertently upgraded and replaced by the expert s employer and was no longer available. The appellant sought to exclude the expert s testimony as a sanction for spoliation of the computer data. The trial court permitted the expert to testify but ordered the appellee to re-create the expert s calculations and provide the computer data to the appellants. When the appellee again failed to produce the data, the trial court awarded sanctions. On appeal, the appellate court affirmed the sanctions award stating, the trial court's order meets both parts of the test for a just sanction based on both a pattern of discovery abuse by [the appellee] and its failure to preserve and produce [the expert s] computer data. Sony Computer Entertainment Am., Inc. v. Filipiak, 2005 WL (N.D.Cal. Dec. 27, 2005). The plaintiff sought injunctive relief and damages claiming the defendant sold products that allowed users to play illegal copies of the plaintiff s PlayStation video games. After receiving a cease-and-desist letter from the plaintiff s attorneys, the defendant signed the letter and agreed to an injunction prohibiting the marketing, sale and distribution of the products. Although the defendant removed the products from his Web site, he continued to sell them. After confronting the defendant about his violation of the previous agreement, the parties executed a Consent Judgment against the defendant for an undetermined amount which was to be based on further discovery. As a part of the discovery provisions, the defendant agreed he would not destroy any documents or computer files reflecting sales of his products. During discovery, the defendant s hard drive was examined by a computer forensic expert, who determined thousands of files had been deleted from the hard drive just days before production of the hard drive. The deleted files included numerous documents with titles indicating they were sales records. Finding a significant statutory damage award was warranted under the circumstances, the court awarded more than $6 million in damages. The court stated, [the defendant] intentionally and in bad faith violated the terms of the Consent Judgment as well as his discovery obligations under Rule 26 of the Federal Rules of Civil Procedure. DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL (E.D. Mich. Dec. 22, 2005). In a breach of contract claim relating to the defendant s NASCAR team, the plaintiff sought sanctions against the defendant for destroying relevant s. In defending its actions, the defendant claimed its computer system was set up to delete both internal and external s automatically, unless affirmative efforts were taken to preserve them. As a result of the automated deletion, internal s from key custodians were irretrievably lost. One key individual testified he was never instructed to preserve relevant communications, even after the lawsuit commenced. In considering whether sanctions were justified, a magistrate judge declared [s]uch normal procedures for destruction of documents must... be suspended when a party is on notice that they may be relevant to litigation, and the failure to make an adequate search of such documents before their destruction may be evidence of bad faith. Although ultimately finding the defendant s actions amounted to negligent spoliation and did not show evidence of bad faith, the magistrate 258

259 found sanctions would be appropriate and recommended the trial court issue an adverse inference instruction and an order allowing the plaintiff to present evidence of the spoliation. Hamilton v. Signature Flight Support Corp., 2005 WL (N.D.Cal. Dec. 20, 2005). In an employment discrimination action, the plaintiffs sought sanctions against the defendants for destroying video surveillance recordings allegedly containing critical evidence about an altercation between an employee and a customer. During discovery, the plaintiffs had requested the video recording as well as information about the defendants surveillance system and a chain of custody for the video. The defendants only produced a portion of the footage but declared it had preserved the only video of the incident. The defendants further stated that the remaining portion was unavailable because the surveillance system automatically records over previous tapings every 15 to 30 days. The court found the video contained relevant evidence, the defendants had a duty to preserve that evidence, and the defendants destroyed the evidence. However, the court declared that the defendants had, at the most, acted negligently in failing to preserve the end of the recorded portion of the altercation and declined to award sanctions. The court also noted the plaintiffs failed to show the missing video would have favored their case and that its destruction would have been harmful. Quinby v. WestLB AG, 2005 WL (S.D.N.Y. Dec. 15, 2005). Objecting to a request for the production of s, the defendant claimed the s were stored on backup tapes and not readily available, making them too expensive to retrieve. In response, the court ordered the defendant to consider the guidelines set forth in Zubulake v. UBS Warburg LLC, to provide an affidavit addressing technical issues and a deposition witness who could discuss these issues, and to restore and put sample tapes into a searchable format. The defendant produced affidavits from its chief information officer and a Kroll Ontrack expert explaining that each tape would need to be uncompressed before it could be put into a searchable format. Further, the affidavits set forth the cost and time considerations required to complete this work. The plaintiff argued the affidavits were incomplete, misleading and contain outright false statements because they improperly focused on back-up tapes and [failed to address] the costs of searching and contents of the Database and archives that Kroll [Ontrack] maintains containing WestLB s from past e-discovery projects. Rejecting this argument, the court declared the defendant correctly focused on the backup tapes as they were the most complete source for the s. In refusing to award sanctions, the court stated, the fact that defendant is producing s from the most complete, but most expensive, source is compelling evidence of defendant's honesty and good faith. See also Quinby v. WestLB AG, 2006 WL (S.D.N.Y. Jan. 11, 2006)(order granting motion to quash two subpoenas seeking all s sent to or received by plaintiff's personal account during the period from October 2002 throughout July 2004, other than s between plaintiff and her current and former counsel. ) Electronic Funds Solutions v. Murphy, 36 Cal.Rptr.3d 663 (Cal. Ct. App. 2005). In a lawsuit involving various business tort claims, the defendants appealed a default judgment and argued the trial court abused its discretion. During discovery, the plaintiffs computer forensic expert discovered four of the defendants hard drives had been "wiped" after the date the court ordered their production. The expert further concluded data had been copied from the hard drives before the wiping and selected data was reinstalled after the wiping. On one of the computers, the defendants appeared to have aborted the data wiping program minutes before they were required to turn it over to the plaintiffs expert. Based on the defendants intentional data destruction, the court entered a terminating sanction and awarded a default judgment of $24 million in punitive and compensatory damages in favor of the plaintiffs. On appeal, the court upheld the terminating sanctions in light of the defendants' brazen violation of a discovery order in the face of an express 259

260 warning. The court stated, the Plaintiffs recovered s from the computer only because defendants had not run the program properly defendants' actions have made it virtually impossible to determine what items defendants destroyed. The court remanded the case, finding the damage award inconsistent with the amount sought in the complaint. Tracy v. Financial Ins. Mgmt Corp., 2005 WL (S.D.Ind. Aug. 22, 2005). In an action alleging violations of the Americans with Disabilities Act and Employee Retirement Income Security Act, the plaintiff sought sanctions pursuant to Fed. R. Civ. P. 37 for the defendant s late production. Citing Zubulake, the plaintiff argued the defendant hindered and prejudiced the discovery process when it produced requested s in the eleventh hour of discovery and after intrastate deposition of key witnesses had commenced. In response, the defendant claimed any late production was inadvertent, an unforeseen result of two physical upgrades to its computer systems, and did not prejudice the plaintiff s case. The defendant further argued Zubulake did not apply as no evidence showed the defendant failed to preserve or retain relevant evidence. Although the court agreed Zubulake did not apply, it determined the defendant did not have a substantial justification for the late production. The court awarded sanctions in part stating, Presumably, the [d]efendant was aware of the physical upgrades to its own computer system and was in a position to know, or should have known, that responsive electronic data may have been stored elsewhere than in the new system. The court also permitted the plaintiff to re-depose the defendant's key witnesses concerning the production of certain documents and ordered the defendant to bear such costs. Nieshe v. Concrete Sch. Dist., 2005 WL (Wash. Ct. App. July 5, 2005). A former student claimed a school district violated her due process rights by excluding her from participating in her high school graduation ceremony for not attaining the requisite grade point average. During discovery, the student requested sanctions against the district for failing to produce a computer disk containing grade report data. The district had provided hard copies of the student's grading report but failed to produce the disk until the first day of trial. The trial court found there may have been a discovery violation because the disk was within the scope of discovery and was not produced before trial, but decided that sanctions were not warranted. On cross-appeal, the student argued the court erred by not sanctioning the district for violating the discovery rules. The appellate court, however, affirmed the district court s decision and found the student did not request the court to order the district to produce additional documents under Rule 37(a). Moreover, sanctions were not warranted because the information on the disk did not contain any information that the plaintiff did not already have. Cooney v. Beverly Enter., Inc., No. CV (Ark. Cir. Ct. June 15, 2005). In a class action lawsuit, the plaintiffs filed a motion for contempt and for sanctions due to the defendants discovery practices. The court declared the defendants in contempt of an earlier discovery order and ordered the defendants to pay $25,000 in plaintiffs attorney fees. Additionally, the court ordered the defendants to comply with the previous discovery order, which included producing electronic data and s. The court also declared that the plaintiffs could have some access to the defendants computer in order to ensure compliance with the discovery orders. Moreover, the court noted that it has not ruled out the possibility of other sanctions [and] will be watching closely the Defendants efforts to comply with discovery. Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL (Fla. Cir. Ct. Mar. 1, 2005). In a suit alleging a fraudulent sale of stock, the plaintiff filed a motion for an adverse inference instruction against the defendant for destroying s and failing to comply with a court order to compel discovery. Despite an SEC regulation requiring retention for two years, the defendant continued its practice of overwriting s every 12 months. Based on this, 260

261 the court ordered the defendant to produce backup tapes, review s, conduct searches, produce responsive s and a privilege log, and certify compliance with the order. The defendant issued the compliance certification in spite of having more than 1,400 backup tapes containing data not yet processed or produced. Throughout the discovery process, the defendant overwrote s, failed to notify and timely process hundreds of DLT and 8mm tapes, and failed to produce s and attachments. The court found the plaintiff did not receive relevant due to the defendant s discovery tactics and granted the motion for an adverse inference instruction noting [t]he conclusion is inescapable that [the defendant] sought to thwart discovery. The court ordered the defendant to continue complying with the earlier discovery order and to pay costs associated with the plaintiff s motion. The court also noted the defendant gave no thought to using an outside contractor to expedite the process of completing the discovery, though it had certified completion months earlier; it lacked the technological capacity to upload and search the data at that time, and would not attain that capacity for months. See also Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL (Fla. Cir. Ct. Mar. 23, 2005); Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. CA AI (Fla. Cir. Ct. Jun. 23, 2005)(Awarding prejudgment interest of $207 million). E*Trade Securities LLC v. Deutsche Bank AG, et al., No RHK/AJB and No RHK/AJB (D. Minn. Feb. 17, 2005). The plaintiffs who alleged the defendants engaged in a fraudulent securities lending scheme sought sanctions against the defendants for convert[ing] the litigation process into a sport of dirty tricks and obfuscation by allegedly destroying evidence, suppressing discoverable material, and failing to search for responsive documents. The defendants counterclaimed, arguing they complied with all discovery requests and requested an award of attorney fees and costs. A magistrate judge analyzed the defendants duty to preserve their computer hard drives, telephone recordings and . The magistrate found sanctions were appropriate because the defendants acted in bad faith by permanently erasing all of the company s hard drives in mid-2002, despite being on notice of potential litigation in January The magistrate also found the defendants failure to preserve relevant phone calls recorded on DVDs warranted sanctions because they should have realized the recordings would be highly relevant and, as a result, should have halted their recycling policy. Finally, the defendants argued they were not obligated to halt their retention policy because they had stored the on backup tapes. However, the magistrate found this unsatisfactory since the defendants recycled their backup tapes every three years. The magistrate recommended an adverse inference instruction and $10,000 in sanctions, declaring the destruction of potentially relevant evidence prejudiced the plaintiffs. Beck v. Atlantic Coast PLC, 868 A.2d 840 (Del. Ch. 2005). The plaintiff brought a breach of warranty and fraud class action against the defendants. In the complaint, the plaintiff accused the defendants of employing deceptive marketing and sales techniques to sell software on the Internet. Contrary to his representation in the complaint, the plaintiff himself never actually used or paid for the product, although a consultant evaluated the product and determined it did not do what it purported to do. Discovery revealed that the plaintiff, using the guise of an organization interested in purchasing the software, corresponded with the defendants via and then posted the information he learned on his personal Internet Web page. During discovery, the plaintiff withheld much of the Web page s content from the defendants. Meanwhile, the defendants discovered the entire content of the page which the plaintiff did not disclose upon performing an Internet search. The defendants moved for dismissal and sought attorney fees, stating the plaintiff and its counsel acted frivolously and in bad faith. Finding the plaintiff s behavior inexcusable, the court dismissed the suit and ordered the plaintiff and his counsel to pay the defendants $25,000. The 261

262 court stated, [w]ithout ensuring that [the plaintiff] and his counsel bear appropriate responsibility for their inappropriate conduct by awarding a substantial, but fair, sanction of fees and costs against them, this court would do a disservice not only to [the defendants] and other litigants in this court, but also to those plaintiffs whose interests are well-served by the availability of class action suits. Nartron Corp. v. General Motors Corp., 2005 WL (Mich. Ct. App. Jan. 6, 2005). In a case involving a breach of contract claim, the plaintiff appealed the trial court s decision granting costs, sanctions for discovery abuse, and prejudgment interest in favor of the defendant. The trial court determined the plaintiff s failure to produce a database in response to the defendant s discovery request tainted, corrupted, or permeated all of the discovery in the case. On appeal, the plaintiff argued the trial court's finding was unsupported by the evidence and clearly erroneous since it had produced more than 61,000 pages of documentation and the defendant did not assert those documents were fraudulent. Rejecting this contention, the appellate court observed the plaintiff did not attempt to refute the trial court s finding by demonstrating its conduct regarding the database did not taint, corrupt, or permeate all the discovery. The appellate court affirmed the trial court's order in part and awarded the defendant attorney fees, costs and expert witness fees. The appellate court declined to award prejudgment interest, deciding that the state statute referring to prejudgment interest did not apply to monetary sanction awards. Peter Rosenbaum Photography Corp. v. Otto Doosan Mail Order Ltd., 2004 WL (N.D.Ill. Nov. 30, 2004). Claiming the defendants violated a limited publication agreement, the plaintiffs subpoenaed relevant electronic documents. The defendants refused to comply with the subpoena claiming undue burden and expense. The plaintiffs brought a motion to compel document production. In response, defense counsel advised the court that the automatic stay provision under bankruptcy law did not subject a debtor to civil discovery unless a bankruptcy court lifts the automatic stay. Based on this representation, the court gave the plaintiffs leave to withdraw their motion to show cause. Filing in bankruptcy court, the plaintiffs moved a second time to compel the document production. The plaintiffs also sought sanctions against defense counsel for her unsupported verbal representations regarding the automatic stay provision. Noting the defendants non-compliance argument was unsupported by case law and the plaintiffs had attempted to minimize compliance costs, the bankruptcy court granted the plaintiff s motion to compel the electronic documents. The bankruptcy court also granted the motion for monetary sanctions against defense counsel, declaring [t]here is a not so fine line between zealous advocacy and intentional misrepresentation of the facts of this case. Dziadkiewicz v. Blue Cross & Blue Shield of Rhode Island, 2004 WL (D.R.I. Oct. 21, 2004). In a class action lawsuit, the plaintiffs brought a motion to compel document production and further alleged the defendant s obfuscation, deliberate frustration of discovery, and hide the ball tactics warranted sanctions. The plaintiffs contended that the defendant waited until the eleventhhour to produce documents, including a CD containing information that would have affected the plaintiffs expert witness analysis. The plaintiffs also argued the defendant failed to disclose 400 to 500 s that the defense expert witness had relied upon in making his own findings. In response, the defendant claimed its expert did not rely on the s and the plaintiffs failed to properly request the s during discovery. The court declared the plaintiffs should have received the database material contained on the CD much earlier when the plaintiffs originally requested the data. Although the court found both parties partly responsible for the discovery dispute, it declared the defendant must pay the greater price as its tactics have led directly to this situation. The court ordered the defendant to produce all of the requested s and permitted the plaintiffs to review the s and re-depose the defense expert witness. The court also 262

263 allowed the plaintiffs expert to review the s and the documents on the CD and modify his report if necessary. Institute for Motivational Living v. Doulos Inst. for Strategic Consulting, Inc., 110 Fed. Appx. 283 (3d Cir. 2004). The plaintiff sued the defendant, seeking to retrieve its proprietary materials and to recover damages for copyright and trademark infringement and misappropriation of trade secrets. The district court previously ordered the defendant to preserve relevant documents, software and equipment. During settlement negotiations, the defendant agreed to return a laptop including the data stored on it to the plaintiff. Minutes before the parties signed the agreement, the defendant violated the preservation order and deleted data from the laptop. At a subsequent evidentiary hearing, a magistrate judge recommended civil contempt sanctions against the defendant for knowingly and in bad faith violat[ing] the original discovery preservation order and deliberately deleting data from the laptop. The district judge found the defendant in civil contempt and awarded $50,000 in costs and attorney fees against him. The appellate court, however, reluctantly found the defendant not liable for violating the settlement agreement since he deleted the data before signing the agreement. Nonetheless, the court held the defendant liable for violating the district court s preservation order and ordered the defendant to pay attorney fees attributed to the file deletion. Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2004 WL (N.D.Tex. Sept. 26, 2004). In a copyright infringement suit, the plaintiff filed a contempt motion against the defendants for violating a preliminary injunction and protective order. In response, the defendants also moved for a contempt motion and sought to affirm an arbitration award in their favor. In reference to the protective order, the defendants represented they would cease using and destroy all copies of the plaintiff s proprietary software. Defense counsel asserted that it would keep backup tapes and forensic copies of the software in a temperature-controlled, secure facility. Despite the order, however, the defendants continued to use the software and inadvertently produced a document to the plaintiff detailing their analysis of the database schema of the software. The defendants also restored seven or eight backup forensic copies of the software to use during its unauthorized analysis. The court noted that the protective order did not specifically address the defendants conduct because the defendants had represented such prohibition would be unnecessary. The court stated that the defendant thus created a loophole, and then covertly took advantage of it. The court held with considerable reluctance that the protective order was not clear enough to warrant enforcement by contempt and declined to hold either party in contempt. Weaver v. Zenimax Media, Inc., 2004 WL (Md. Cir. Ct. Sept. 3, 2004). An employer brought a motion for sanctions against a former employee, claiming the employee s egregious discovery conduct warranted dismissal of the suit. The employee confessed under oath that he had accessed, searched, printed, and reviewed s from the computers of company executives without permission, in an attempt to find information relevant to his personal interests. The court evaluated five factors in determining if dismissal was warranted: (1) the employee s willfulness, wrongfulness and bad faith; (2) the relationship between the misconduct and the issues in the case; (3) the amount of prejudice the employee s actions caused the employer; (4) the promotion and safeguarding of judicial administration versus the importance of resolving disputes on the merits; and (5) the likelihood that a lesser sanctions would deter the behavior. After weighing these factors, the court determined the employee engaged in a systematic, calculated, and months-long scheme to obtain an advantage in a litigation that he planned to file and pursue by scanning and printing the s without authorization. The court granted the motion for sanctions and dismissed the complaint. 263

264 Mosaid Techs. Inc. v. Samsung Elecs. Co., 2004 WL (D.N.J. July 7, 2004). In a case involving a patent infringement claim, the plaintiff moved for discovery sanctions, alleging the defendants failed to preserve and disclose discoverable evidence. Challenging the plaintiff s motion, the defendants pointed out that their own discovery request expressly included s and claimed the plaintiff did not specifically include in its definition of document during discovery. The defendants also argued that the plaintiff did not demonstrate it was prejudiced as a result of not receiving the s. The court rejected the defendants arguments stating that the defendants knew, or should have known, those s were discoverable, given their heavy reliance on s obtained from plaintiff during discovery, not to mention the obvious realities of modern litigation the fact that no technical s were preserved demonstrates, at the least, extremely reckless behavior. In an order following the July opinion, the judge issued $566,838 in sanctions against the defendants as well as an adverse inference instruction for spoliation of evidence. Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595 (D.N.J. 2004). See also Mosaid Techs. Inc. v. Samsung Elecs WL (D.N.J. Oct. 1, 2004) and Mosaid Techs. Inc. v. Samsung Elecs. 348 F.Supp.2d 332 (D.N.J. 2004) (both affirming sanctions awards). Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2004 WL (S.D.N.Y. Aug. 30, 2004). In a breach of contract action, the plaintiff sought discovery sanctions against the defendants for failing to produce electronic documents. During the initial discovery conference, the defendants claimed it could not produce the documents because the attorney general of Venezuela issued a directive precluding them from producing any electronic discovery. At the conference, the court issued an order stating it would enter a default judgment for the plaintiff if the defendants did not produce all responsive electronic documents. When the defendant still did not produce the documents, the plaintiff sought a default judgment against the defendant for violating the order. In response, the defendant argued the motion would be premature and unwarranted because it had disclosed the data after the attorney general had granted permission to do so. Stating the defendant s production was incomplete, the plaintiff continued to assert its motion for default judgment. The court denied the motion, determining that the default judgment remedy was inappropriate because it was aimed at correcting the attorney general s discovery directive not at remedying the nature of the defendant s electronic document production. See also Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A, 2004 WL (S.D.N.Y. Dec. 29, 2004). Metropolitan Opera Ass n, Inc. v. Local 100, 2004 WL (S.D.N.Y. Aug. 27, 2004). In a case involving a labor dispute, the defendants moved for reconsideration of an earlier decision in which the court issued severe sanctions for mishandling and deleting electronic data during discovery. See Metropolitan Opera Assoc., Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003). Among other things, the defendants argued sanctions were unwarranted because they had initially produced all relevant documents despite the plaintiff s contrary arguments. The defendants also contended that the court could not impose sanctions unless proof existed that the deleted documents were actually relevant. In response, the court declared it was unknown whether they actually produced all relevant documents since the defendants had deleted documents. The court further stated the decision to impose sanctions was not based upon whether the documents were relevant but, rather, based upon the vexatious manner in which the defendants failed to comply with discovery. In upholding the sanctions award, the court noted the defendants and their counsel may not engage in parallel know-nothing, do-nothing, head-in-the-sand behavior in an effort consciously to avoid knowledge of or responsibility for their discovery obligations and to obstruct plaintiff s wholly appropriate efforts to prepare its case. See also Metropolitan Opera Ass n, Inc. v. Local 100, 332 F.Supp.2d 667 (S.D.N.Y. 2004). (In another decision issued in the case on the 264

265 same day, the judge refused to recuse herself for remarks about the case made during a continuing legal education seminar.) Philip Morris USA, Inc. v. Otamedia Ltd., 331 F.Supp.2d 228 (S.D.N.Y. 2004). In a case involving allegations of trademark infringement and unfair competition, the plaintiff accused the defendant of illegally using the Internet to sell the plaintiff s brand of cigarettes, which was intended only for sale abroad, to customers in the United States. Arguing the plaintiff s cigarettes comprised merely a fraction of the products sold, the defendant presented two batches of sales data. The plaintiff s computer forensics expert examined the sales data and found inconsistencies in computer programming formulas, individual sales records, and customer confirmations. After being confronted with the expert s analysis, the defendant admitted its sales data was unreliable, and likely fraudulent. Finding the defendant s supporting testimony and data so riddled with fabrication and deception as to warrant the inference that the truth is the exact opposite of what [the defendant] contends, the court ordered the transfer of the defendant s domain names to the plaintiff. Advantacare Health Partners, LP v. Access IV, 2004 WL (N.D.Cal. Aug. 17, 2004). The plaintiffs filed suit against the defendants, former employees of the plaintiffs, alleging the defendants newly created company competed directly with the plaintiffs business. In support of their claims, the plaintiffs hired a computer forensic expert to examine the defendants former work computers. The forensic expert discovered that, prior to leaving the company, one of the defendants accessed the plaintiffs computer network, copied company confidential files, and deleted the copied files from his hard drive, in an attempt to conceal the file copying. Based on this evidence, the court granted the plaintiffs request to make forensic copies of the defendants current home and business computers and server. The forensic expert found that after the court issued the order, numerous computer searches for data deletion software were performed and a program called BC Wipe was used to delete more than 13,000 files from the defendant s home and office computers and server. The forensic expert also found an additional 100 files deleted just hours before the defendants submitted the hard drives to the plaintiffs for analysis. Based on these facts, the court ordered the defendants to permanently delete the files and authorized the plaintiffs to re-image the defendants hard drives to verify compliance. Upon re-imaging the hard drives, the plaintiffs expert discovered thousands of confidential files still existed on the drives. The defendants argued they could not ensure whether they had deleted all of the files because the plaintiffs failed to identify the files by name, directory, and computer. Declining to accept the defendants argument, the court stated, [d]efendants behavior, from the very inception of this case, has demonstrated willfulness, fault, and bad faith. The court awarded $20,000 in sanctions and indicated that it would instruct the jury to make a negative inference concerning the deleted files. Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (S.D.N.Y. 2004). In a patent infringement and trade secret theft suit, the plaintiffs requested direct access to all of the defendants hard drives, servers and databases. The defendants argued the discovery request was overbroad because it included more than the products at issue in the suit. Refusing to grant the plaintiffs request for direct access to all of the defendants computer systems, the court stated such a request would require an expenditure of time and resources far out of proportion to the marginal value of the materials to this litigation. Alleging discovery misconduct by the defendants, the plaintiffs also moved for spoliation sanctions against the defendants for failing to preserve e- mails and other electronic data relating to the product in dispute. However, the court declined to award spoliation sanctions because no evidence of intentional destruction of the s existed, 265

266 the plaintiffs did not attempt to establish the circumstances under which the s were deleted, and a preservation order was not in place for the other electronic data. State v. Kandel, 2004 WL (Minn. App. Aug. 10, 2004). In a criminal prosecution for possession of child pornography, the state appealed a trial court s order dismissing the case against the defendant as a sanction for the state s discovery violations. Pursuant to a court order, the defendant had requested a forensically sound image copy of his computer hard drive, which had been turned over to the state by someone other than the defendant. When the state failed to comply with this and other discovery requests, the defendant moved to suppress any evidence derived from the computer and to have the charges dismissed. Refusing to award sanctions at that time, the district court granted the state more time to produce the disclosures. However, the state still had not produced the requests or allowed the defendant to access the computer even after several months had passed. As a result, the trial court granted the defendant s motions for suppression and dismissal. On appeal, the state argued that it did not want to lose the forensic value of the computer by giving access to the defendant since that would violate laws prohibiting dissemination of child pornography. Affirming the trial court s decision, the appellate court noted, [a]lthough dismissal is an extreme sanction, [t]he values sought to be achieved through reciprocal discovery will be attained only if the rules are properly observed, and to this end the trial courts must have the ability to make those obligations meaningful. Creditriskmonitor.com, Inc. v. Fensterstock, No /2001 (N.Y. Sup. Ct. Aug. 6, 2004). Alleging that a former employee stole a customer list and other confidential information, the plaintiff brought charges against the former employee and his new company for violating a non-compete clause. In a court-ordered settlement, the defendants stated that they did not possess the plaintiff s customer list or any other confidential information, agreed that the former employee would refrain from working for the defendant for a period of time, and confirmed that they would not solicit any of the plaintiff s customers. Several months after the court ordered settlement, the plaintiff filed a contempt proceeding against the defendant for violating the agreement by possessing the plaintiff s customer list, working with the former employee, and soliciting the plaintiff s customers. The court ordered a computer forensics examination of the defendants computers, resulting in the discovery of hundreds of s and other relevant documents, including the customer list and other various s from the former employee to many of the defendant s employees. Finding the defendants violated the settlement order, the court stated that the defendants acted willfully and in some cases maliciously in violating the Order perhaps the best description of [their] acts would be 'reckless indifference' which has been found to be equivalent to willfulness To put it bluntly they just didn't care about the Order." The court awarded $820,000 in compensatory and punitive damages, as well as legal fees and costs. Hentsch Henchoz & Cie v. Gubbay, 97 P.3d 1283 (Utah 2004). Arguing that a forum selection clause made venue in a Utah court improper, the defendants sought to dismiss a case arising from investment fraud accusations. After a series of hearings, the district court determined the forum selection clause was unfair and should be disregarded. The court ordered the defendants to comply with the plaintiff s outstanding discovery requests. Contrary to the district court s discovery orders, the defendants shipped all of their documents, records, and computer hard drives from Utah to Spain. The plaintiff then moved for summary judgment on three of its claims, and the district court granted the motion entering a $24.73 million judgment against the defendants. The defendants appealed, again claiming the suit should have been dismissed pursuant to the forum selection clause. Arguing for dismissal of the appeal, the plaintiff contended the defendants repeatedly and willfully disobeyed [the district court s] orders [and] destroyed evidence. In response, the defendants declared they did not willfully disobey discovery orders, but that they 266

267 simply declined to participate substantively in the proceedings. Rejecting the defendants argument, the appellate court stated the defendants were obligated to comply with the court s discovery orders, even if they were erroneous. The appellate court gave the defendants 30 days to comply with the discovery orders, indicating that any further noncompliance by the defendants would result in dismissal of the defendants appeal. Massimo v. State, 2004 WL (Tex. Ct. App. Aug. 5, 2004). Challenging a misdemeanor conviction for harassment by electronic communication, the defendant argued, among other things, that the trial court erred by not granting her a continuance. Specifically, the defendant argued she was entitled to a continuance because she did not receive s, relied upon by the prosecution, until the day of trial. Defense counsel further argued that it needed the s in order to have an expert evaluate their source before trial. Denying the defendant s motion, the trial court noted copies of the s were available three days before trial and defense counsel should have picked up the copies at the District Attorney s office. On appeal, the appellate court also indicated that counsel should not have waited 17 days before the trial to file discovery and inspection of evidence motions and that counsel could have hired an expert even if the s were unavailable for review. In affirming the trial court s decision, the appellate court declared, the failure to obtain an expert or to obtain the s until the eve of trial can hardly be the fault of the State [the defendant] was at least partially, if not totally, responsible for their last-minute production. United States v. Philip Morris USA Inc., 327 F.Supp.2d 21 (D.D.C. 2004). In a case brought by the government involving smoking and health related issues, the government filed a motion for evidentiary and monetary sanctions against the defendants for spoliation of evidence. Although the court had ordered preservation of all potentially relevant documents, the defendants continued to delete when it became sixty days old, on a monthly systemwide basis for a period of two years after the court order. Even after learning about their inadequate document retention policy, the defendants continued to destroy documents for several months, including relevant s from at least eleven company supervisors and officers. In addition, the defendants failed to notify the court about the situation until four months after they found out about it. Finding that a significant number of s had been permanently destroyed, the court declared that it is astounding that employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining to issues in this lawsuit, failed to follow [the] Order which, if followed, would have ensured the preservation of those s which have been irretrievably lost. Granting the government s motion for sanctions, the court stated that it will preclude the defendants from calling a key employee, who failed to follow the retention policy, as a fact or expert witness at trial. The court also ordered the defendants to pay costs relating to the spoliation as well as $2,750,000 in monetary sanctions. See also United States v. Philip Morris USA Inc., 223 F.R.D. 1 (D.D.C. 2004). Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004). During an ongoing discovery dispute in an employment discrimination case, the employee moved for sanctions against the employer for failing to produce backup tapes containing relevant s and for failing to produce other relevant documents in a timely manner. See Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In this latest motion, the employee contended that the employer, who recovered some of the deleted relevant s, prejudiced her case by producing recovered s long after the initial document requests. Furthermore, some of the s were never produced, including an that pertained to a relevant conversation about the employee. As such, the employee requested sanctions in the form of an adverse inference jury instruction. Determining that the employer had willfully deleted relevant s despite contrary court orders, the court granted the motion for sanctions and also ordered the employer to pay costs. The court further noted that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate 267

268 relevant information, to preserve that information, and to timely produce that information. In addressing the role of counsel in litigation generally, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched." Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained, and produced. Additionally, the court declared that litigators must guarantee that identified relevant documents are preserved by placing a litigation hold on the documents, communicating the need to preserve them, and arranging for safeguarding of relevant archival media. See also Zubulake v. UBS Warburg, LLC, 231 F.R.D. 159 (S.D.N.Y. 2005) (Denying employer s motion to assert an affirmative defense based on the delay in asserting the defense and the prejudicial effects it would cause the employee in re-opening discovery.) Feather River Anesthesia Med. Group, Inc. v. Fremont-Rideout Health Group, 2004 WL (Cal. Ct. App. June 30, 2004). In a case involving unfair competition allegations, the plaintiff claimed that the defendant failed to adequately respond to its document production requests. After the defendant failed to adequately respond for almost an entire year, the trial court issued a production order and awarded monetary sanctions against the defendant. The defendant then filed a motion for clarification. In response, the trial court modified its original order and upheld the sanction award. Among other things, the modified order required the defendant to report the authority and expertise of the person searching any electronic data. The defendant was also ordered to assure that the person could access all relevant data and that they had made an effort to recover any relevant deleted data. On appeal, the defendant argued that its actions were substantially justified because it opposed the plaintiff s motion to compel. In affirming the trial court s imposition of sanctions, the appellate court stated that even if the defendant s objections to disclosure of some of the evidence may have been valid [that] does not make its refusal to disclose other discoverable evidence substantially justified. MasterCard Int l, Inc. v. Moulton, 2004 WL (S.D.N.Y. June 22, 2004). Asserting a copyright infringement claim against the operators of a pornographic website, the plaintiff sought spoliation sanctions against the defendant for failing to produce all s relating to the website. In response, the defendants admitted that they failed to retain four months worth of s sent and received after the plaintiff filed the lawsuit. The defendants argued that no effort was made to print or to save the s before they were automatically destroyed by the computer server because such s were not preserved in its ordinary course of business. Rejecting this argument, the court sanctioned the defendants by granting an adverse inference jury instruction stating that the very fact that the s are missing leaves us in the realm of speculation as to what they contained and in what manner they might have assisted plaintiff in litigating claims. QZO, Inc. v. Moyer, 594 S.E.2d 541 (S.C. Ct. App. 2004). A corporation alleged that the defendant, a former officer and shareholder of the corporation, violated state trade secret laws by planning to compete with the corporation. The corporation requested the defendant turn over a computer, which allegedly contained evidence of the defendant s plans to compete. The trial court granted a temporary restraining order (TRO) directing the defendant to hand over the computer to the corporation or to a neutral third party. The defendant waited until seven days after the TRO was issued to deliver the computer to the corporation. After receiving the computer, the corporation hired a computer expert to inspect and retrieve any potential evidence from the computer s hard drive. The expert discovered the hard drive had been reformatted a day before the defendant delivered the computer to the corporation, which erased any evidence that may have been on the computer. The corporation requested sanctions in the form of a default judgment against the defendant for intentionally violating the TRO. The trial court granted the corporation s motion for 268

269 sanctions and entered the default judgment in favor of the corporation. The defendant appealed stating that the evidence was insufficient to support such severe sanctions. On appeal, the appellate court affirmed the trial court s judgment, determining that the sanctions were not too severe. Attorney Grievance Comm n of Maryland v. Potter, 844 A.2d 367 (Md. 2004). The court considered a Petition for a Disciplinary Action filed by the Attorney Grievance Commission against the defendant, an attorney, for violating the Maryland Rules of Professional Conduct. Upon resigning from a law firm, the defendant took paper files pertaining to two clients of the firm stating that he believed that the clients would choose to have the defendant continue to represent them. Additionally, the defendant deleted the client files from the firm s computer without authorization from the firm. The computer records included all documents prepared by the defendant and the firm s secretaries relating to matters involving the clients. The Commission sought suspension of the attorney s license alleging that the defendant committed a criminal act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects. The judge appointed to hear the initial action held that the defendant did not violate the Code. However, the court of appeals reversed, finding by clear and convincing evidence that the defendant s conduct in deleting the files violated the Rules of Professional Conduct. The court further noted, [n]otwithstanding the attorney s motive, lawyers in this State may not delete computer records or take client files without authorization. The court concluded that the defendant s misconduct warranted a 90 day suspension from the practice of law. Invision Media Communications, Inc. v. Federal Ins. Co., 2004 WL (S.D.N.Y. Mar. 2, 2004). In an action for breach of an insurance contract, the defendant moved to compel production of documents and requested monetary sanctions, contending that the plaintiff made false statements regarding the location and existence of its documents and destroyed evidence relevant to the lawsuit. Among the documents requested by the defendant were communications sent by the plaintiff. Specifically, the defendant sought All electronic mail communications sent or received by the plaintiffs during August 2001, September 2001 and October The plaintiff represented to the defendant that the s could not be produced because the plaintiff archived on its servers for only a two week period. The court found these statements false because the plaintiff eventually disclosed the requested s after further investigation. Accordingly, the court awarded the defendant costs and attorneys fees, noting that [a] reasonable inquiry by the plaintiff s counsel would have alerted counsel that the plaintiff possessed electronic mail that fell within the scope of Federal s document request the plaintiff has disregarded its discovery obligations, made misleading statements regarding the existence and location of relevant evidence, and/or failed to make reasonable inquiries into matters pertinent to the pretrial discovery phase of this litigation. Aero Prods. Int l v. Intex Rec. Corp., 2004 WL (N.D. Ill. Jan. 30, 2004). In a patent infringement suit, the plaintiffs moved for production of documents relating to the development of the products in question. When the plaintiffs uncovered that the defendant had been deleting all of its s every 30 days since the initiation of the suit, the court entered a protective order requiring the defendant to make a full and complete effort to recover any and all deleted electronic documents, including . The order also stated that the plaintiffs could petition for the appointment of a computer forensics expert to assist in recovering electronic data, and that the plaintiffs could request that the defendant bear the costs of the expert. Responding to the order, the defendant produced 45 pages of documents and an expert report that described the defendant s efforts to recover the deleted s. Although the plaintiffs found these submissions unacceptable, they did not file a petition seeking the appointment of a neutral computer forensics 269

270 expert. In denying the motion, the court declared that the plaintiffs, as was their right pursuant to the protective order, should have filed a petition seeking the appointment of a computer forensics expert. The court also held that an award of sanctions would be unjust because plaintiffs waited more than seven months before filing the discovery motion. Thompson v. United States, 219 F.R.D. 93 (D.Md. 2003). The plaintiff served upon the defendants a series of Rule 34 document production requests seeking electronic records and e- mail. When the defendants failed fully to produce these records, the plaintiffs filed a motion seeking sanctions. The court issued Rule 37(b)(2) relief to the plaintiffs by ruling that the defendants could not call certain witnesses unless they were able to demonstrate that there were no responsive e- mail records generated or received by the witness or, if such records did exist, that they had been produced to the plaintiffs by a certain date. Long after the discovery cutoff deadline and the court s sanction order, the defendant announced that it had discovered 80,000 records, after having repeatedly told the plaintiff and the court that records either did not exist or already had been produced. The court revised its previous sanction order, (1) precluding the defendants from introducing into evidence any of the 80,000 s that were "discovered" at the last minute; (2) ordering that counsel for the defendants were forbidden to use any of these s to prepare any of their witnesses for testimony at trial, and that at trial counsel for the defendants were forbidden from attempting to refresh the recollection of any of their witnesses by using any of the undisclosed s; (3) ordering that the plaintiffs were permitted to use any of the 80,000 s during their case and in cross-examining any of the defendants witnesses; (4) ordering that, if the plaintiffs incurred any additional expense and attorney's fees in connection with reviewing the 80,000 records and analyzing them for possible use at trial, this could be recovered from the defendants upon further motion to the court; and (5) ordering that if, at trial, the evidence revealed additional information regarding the non-production of , the plaintiffs were free to make a motion to the court that the failure to produce records as ordered by this court constituted a contempt of court. Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In the restoration effort that occurred according to previous e-discovery decisions in the matter, the parties discovered that certain backup tapes were missing and that s had been deleted. The plaintiff moved for evidentiary and monetary sanctions against the defendant for its failure to preserve the missing tapes and e- mails. The court found that the defendant had a duty to preserve the missing evidence, since it should have known that the s may be relevant to future litigation. Although the plaintiff did not file her charges until August 2001, by April of that year, "almost everyone associated with Zubulake recognized the possibility that she might sue," the court wrote. The court also found that the defendant failed to comply with its own retention policy, which would have preserved the missing evidence. The judge found that although the defendant had a duty to preserve all of the backup tapes at issue, and destroyed them with the requisite culpability, the plaintiff could not demonstrate that the lost evidence would have supported her claims. Therefore, it was inappropriate to give an adverse inference instruction to the jury. Even though an adverse inference instruction was not warranted, the court ordered the defendant to bear the plaintiff s costs for re-deposing certain witnesses for the limited purpose of inquiring into the destruction of electronic evidence and any newly discovered s. Landmark Legal Foundation v. Environmental Protection Agency, 272 F. Supp.2d 70 (D.D.C. 2003). Concerned that documents responsive to its Freedom of Information Act request would not survive the transition between governmental administrations, the plaintiff requested the court to enter a preliminary injunction prohibiting the EPA from destroying, removing, or tampering with potentially responsive documents. The court granted the motion and issued an injunction. Despite 270

271 the court's order, the hard drives of several EPA officials were reformatted, backup tapes were erased and reused, and individuals deleted received s. The court found the EPA in contempt and concluded that the appropriate sanction was to impose sanctions in the form of the plaintiff s attorney's fees and costs incurred as a result of the EPA s conduct. Commissioner v. Ward, 580 S.E.2d 432 (N.C. App. 2003). In this matter, the plaintiffs and the defendants engaged in a long and complex discovery battle relating to the protocols for discovery of both paper and electronic documents stored off-site by the defendants. Upon plaintiffs first motion to compel, the court ordered the defendants to permit the plaintiffs to examine, review and copy stored documents and make a good faith search for other documents, including all electronic data on DAT tapes, for inspection and review by the plaintiffs. When the defendants failed to cooperate, the plaintiffs sought a second motion to compel. Prior to the hearing on this second motion, the parties entered into a consent order which included provisions allowing the plaintiffs to examine, inspect and copy all information stored in computers, computer hard drives, removable electronic data storage media, diskettes, magnetic tapes, CD ROMs, zip discs and jazz discs and requiring the defendants to produce all backup data and describe in writing the process used to access the data. Again the defendants failed to comply with the consent order in providing the required electronic information. The plaintiffs then made its third motion to compel and sought sanctions. Finding that the defendants had intentionally and willfully refused to comply with discovery, the trial court sanctioned the defendants by ordering them to produce, at their cost, copies of the backup tape data. The appellate court affirmed the sanctions. Hildreth Mfg. v. Semco, Inc., 785 N.E.2d 774 (Ohio Ct. App. 2003). The appellate court found no basis for defendant s motion for contempt for spoliation of computer evidence. The court found that even though the plaintiff failed to preserve data contained on the computer hard drives at issue, there was not a reasonable possibility that the hard drives contained evidence that would have been favorable to the defendant s claims. Metropolitan Opera Assoc., Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003). In a labor dispute, the defendants failed to comply with discovery rules, specifically failing to search for, preserve, or produce electronic documents. The court stated [C]ounsel (1) never gave adequate instructions to their clients about the clients' overall discovery obligations, what constitutes a document ; (2) knew the Union to have no document retention or filing systems and yet never implemented a systematic procedure for document production or for retention of documents, including electronic documents; (3) delegated document production to a layperson who (at least until July 2001) did not even understand himself (and was not instructed by counsel) that a document included a draft or other non-identical copy, a computer file and an ; (4) never went back to the layperson designated to assure that he had establish[ed] a coherent and effective system to faithfully and effectively respond to discovery requests, and (5) in the face of the Met's persistent questioning and showings that the production was faulty and incomplete, ridiculed the inquiries, failed to take any action to remedy the situation or supplement the demonstrably false responses, failed to ask important witnesses for documents until the night before their depositions and, instead, made repeated, baseless representations that all documents had been produced. The court granted severe sanctions, finding liability on the part of the defendants and ordering the defendants to pay plaintiff s attorneys fees necessitated by the discovery abuse by defendants and their counsel. The court found that lesser sanctions, such as an adverse inference or preclusion, would not be effective in this case because it is impossible to know what the Met would have found if the Union and its counsel had complied with their discovery obligations from the commencement of the action. 271

272 Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d. Cir. 2002). The defendants appeal the trial court s denial of defendants motion for sanctions, specifically in the form of an adverse jury instruction, for the plaintiff s failure to produce in time for trial. The Second Circuit held that where a party breaches a discovery obligation by failing to produce evidence, the trial court has broad discretion in fashioning an appropriate sanction, including the discretion to delay the start of a trial, to declare a mistrial, or to issue an adverse inference instruction. Sanctions may be imposed where a party has not only acted in bad faith or grossly negligent, but also through ordinary negligence. Vacating the trial court s sanctions order, the circuit court reversed and remanded with instructions for a renewed hearing on discovery sanctions. Williams v. Saint-Gobain Corp., 2002 WL (W.D.N.Y. June 28, 2002). In an employment discrimination suit, the court refused to issue sanctions or attorney s fees stemming from myriad discovery disputes. Despite an earlier assertion that no further responsive documents could be located, the defendant produced s obtained from an executive s computer five days before trial. The court found no evidence of any bad faith as to the withholding or destruction of the e- mails and issued the parties an extended time period to complete discovery. The court ordered each party to bear its own discovery costs. DeLoach v. Philip Morris Co., 206 F.R.D. 568 (M.D.N.C. 2002). The plaintiffs sought discovery sanctions alleging that the defendant s expert report relied on computerized transaction data that was deliberately withheld from the plaintiffs during discovery. The discovery request at issue sought "[a]ll summary documents (including electronic data) relating to your leaf tobacco bids, purchases, or price paid, including but not limited to the entire Tobinet database in electronic form, but excluding individual transaction documents such as purchase orders and invoices." The plaintiffs were only provided the database data after the defendant s expert report was issued (in which the defendant s expert relied heavily on this other computerized data). The court held that the withholding of the data resulted in unfairness to the plaintiffs and allowed the plaintiffs to respond to the report and provided no opportunity for the defendant to reply. Cobell v. Norton, 206 F.R.D. 324 (D.D.C. 2002). The court issued sanctions, including attorneys fees and expenses, under Rule 37 based upon the defendants request for a protective order clarifying that it may produce in response to discovery requests by producing from paper records of messages rather than from backup tapes and may overwrite backup tapes. The defendants had previously been ordered to produce the messages from the back-up tapes. The court held that the defendants' motion for protective order clarifying their duty to produce the e- mail was not appropriate. Sheppard v. River Valley Fitness One, 203 F.R.D. 56 (D.N.H. 2001), rev d on other grounds, 2005 WL (1st Cir. Sept. 9, 2005) aff d in part and vacated in part by, 428 F.3d 1 (1st Cir. 2005). The plaintiffs served several requests for discovery upon the defendant which defined the term documents broadly, encompassing both paper documents and electronic communications. However, defendant s attorney (Whittington) failed to turn over the requested documents in a timely fashion and some of the documents were lost or destroyed. The court held, Notwithstanding Whittington's habit of trying to obstruct discovery in this case, I find that in this instance Whittington's failure to produce computer records and to retain all drafts or other documents relating to the Aubin settlement reflects a lack of diligence rather than an intentional effort to abuse the discovery process. Nevertheless, Whittington's failure to fully comply with this court's March 22 order has unfairly prejudiced the plaintiffs by depriving them of the opportunity to question Aubin about the contents of the documents. The court ordered the defendant s attorney to pay $500 to the plaintiff. 272

273 Lexis-Nexis v. Beer, 41 F. Supp.2d 950 (D. Minn. 1999). Employer sued former employee for misappropriation of trade secrets. The court issued monetary sanctions against former employee where former employee failed to produce a specific copy of an electronic database he made at the time of his resignation. New York State Nat l Org. for Women v. Cuomo, 1998 WL (S.D.N.Y. July 14, 1998). The court refused to impose sanctions on the defendant for destroying computer databases where there was no showing that the defendant deleted computer databases or destroyed monthly summary reports in order to impede litigation and the plaintiffs failed to demonstrate that they were prejudiced by the loss of the records. Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D.Utah 1998), rev d on other grounds, 222 F.3d 1262 (10th Cir. 2000). In an unfair competition case, the defendant moved for sanctions against the plaintiff, alleging that the plaintiff violated its duty to preserve relevant communications of five key employees identified by the plaintiff as containing relevant information. Finding a sanctionable breach of the plaintiff s discovery duties, the court sanctioned the plaintiff $10,000 --$2,000 for each of the five custodians. In addition, the plaintiff objected to an order limiting the scope of a keyword search that the plaintiff desired to conduct on the defendant s electronic databases. The court held that the keyword searching limitation prevented discovery of information relevant to the plaintiff s claims. The plaintiff was allowed to submit a list of 25 keywords given that the proposed terms were not so extensive as to render general commercial or competitive information. In re Prudential Ins. Co. Sale Practices Litig., 169 F.R.D. 598 (D.N.J. 1997). Life insurer's consistent pattern of failing to prevent unauthorized document destruction in violation of a court order, in a suit alleging deceptive sales practices, warranted sanctions requiring payment of $1 million to court and payment of some plaintiff s attorney fees and costs. Gates Rubber Co. v. Bando Chem. Ind., 167 F.R.D. 90 (D. Colo. 1996). The court awarded sanctions (ten percent of the plaintiff company s total attorney fees and costs) where defendant s employees continuously destroyed (by overwriting) electronic evidence. The court criticized defendant s expert for not making an image copy of the drive at issue for production. Crown Life Ins. Co. v. Craig, 995 F.2d 1376, (7th Cir. 1993). Affirmed trial court s decision to sanction insurer and enter default judgment (counterclaim) against insurer when it failed to comply with discovery order requesting raw data from database. Data from a computer said to be documents within the meaning of FRCP 34. American Banker Ins. Co. v. Caruth, 786 S.W.2d 427 (Tex. Ct. App. 1990). Courts can impose sanctions on parties that fail to comply with electronic discovery requests. Leeson v. State Farm Mut. Ins. Co., 546 N.E.2d 782 (Ill. App. Ct. 1989). Appellate Court held that defendant s claims were justified on grounds of oppressiveness, and therefore; the trial court abused its discretion in entering default sanctions for defendant s failure to comply with the discovery order. Such production would have been overly burdensome where compliance would have required the defendant to create a computer program to find the records and at least 15 minutes for an analyst to look through each of the 2,100 claims. National Assoc. of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987). The court imposed sanctions on party that altered and destroyed computer documents in the regular course of business. The court appointed special master to over-see the discovery process. Work Product Doctrine & Privilege 273

274 Inhalation Plastics v. Medex, 2012 WL (S.D. Ohio Aug. 28, 2012). In this case, the defendant sought return of approximately 350 pages of inadvertently produced s. In the contested production, the defendant produced approximately 7,500 pages of in hard copy without a privilege log or any confidential markings as required by a stipulated protective order. Once the defendant learned of the production, it claimed that any s relating to three particular employees were privileged and inadvertently produced. In a subsequent deposition, the plaintiff attempted to use 14 of the inadvertently produced s and the defendant once again claimed that the documents were inadvertently produced and sought their return. After conducting in camera review, the court found many of the documents were within the ambit of attorney-client privilege, and turned to Fed. R. Evid 502(b) to determine whether privilege was waived. Applying Rule 502(b), the court considered the reasonableness of precautions taken to prevent disclosure, the number and magnitude of inadvertent disclosures, any measures taken to mitigate damage of the disclosures, and the overriding interests of justice. Reviewing the defendant s conduct in light of these considerations, the court found that the defendant gave insufficient notice to the plaintiff and failed to substantiate specific documents via a privilege log. Additionally, the court found that, despite its suggestion that several layers of attorneys conducted review of the documents, the defendant failed to establish that it took reasonable steps to prevent inadvertent disclosure. Finally, reviewing the high number of inadvertently disclosed documents in relation to the relatively small number of documents in production, the court held that the overriding interests of justice favored the plaintiff and ordered privilege waived. Hanson v. First Nat'l Bank, 2011 WL (S.D.W. Va. Oct. 31, 2011). In this case, the plaintiff sought production of a defendant-employee's s with his attorney. The plaintiff contended that the employer's data policy, which stated that employee s were not confidential and were subject to review, constituted a waiver of any existing attorney-client privilege. The defendant, while conceding awareness of the policy, tried to show that he nonetheless believed the s were confidential by relying on a different section of the policy. The relevant section provided that other employees should regard messages as confidential and accessible only by the intended recipient. Noting that the defendant s reliance was misplaced as it did not address the employer's ability to review the , the court held that the defendant s knowledge of the policy waived the attorney-client privilege. Sitton v. Print Direction, Inc., 2011 WL (Ga. App. Sept. 28, 2011). In this privacy rights dispute, the plaintiff appealed the trial court s determination that the defendant-employer s investigation of the plaintiff s computer for evidence of involvement with a competing business did not constitute an invasion of privacy. The defendant conducted its investigation by entering the plaintiff s office, moving the computer s mouse, clicking on the listing which appeared on the screen and printing s related to a competing job after catching wind the plaintiff had been improperly competing with the defendant s business. Notably, the s were on a separate e- mail address on the plaintiff s personal computer that he used for work with the defendant and his own personal use over the company s systems. Addressing the plaintiff s arguments, the court determined the defendant s conduct did not constitute an unreasonable intrusion or surveillance under OCGA , which addresses computer theft, trespass and invasion of privacy. Further, the court cited the defendant s computer usage policy (noting it was not limited to only work-issued technology) and the employee manual which clearly stated that communications transmitted over the company s systems should not be regarded as private or confidential, and affirmed the trial court s ruling. Williams v. Dist. of Columbia, 2011 WL (D.D.C. Aug. 17, 2011). In this wrongful termination litigation, the defendant requested the return of an allegedly privileged 274

275 containing a 104-page document related to the plaintiff's termination. Although the defendant initially requested the immediate return of the privileged documents, the plaintiff never responded and the defendant took no further action for more than two years until the plaintiff identified the e- mail as an exhibit for trial. Reviewing the defendant s discovery conduct, the court determined it did not meet the burden required to demonstrate that reasonable steps were taken to prevent or remedy inadvertent disclosure. Specifically, the court took issue with the defendant's unsworn statements from counsel who had not been involved with the case at the time of disclosure and determined that the generic statements failed to sufficiently detail the reasonableness of its review procedures including its methodology, the total number of documents reviewed or any time pressure imposed by the plaintiff s discovery requests. Further, the court found that the defendant's two year stagnancy did not constitute reasonable attempts to rectify its error. Citing each failure as independent ground for denial, the court denied the motion to exclude and waived privilege. MSP Real Estate, Inc. v. City of New Berlin, 2011 WL (E.D. Wis. July 22, 2011). In this Fair Housing Act and Americans with Disabilities Act litigation, the plaintiffs alleged the defendants waived attorney-client privilege with regard to 72 documents 42 of which were not contested that were inadvertently produced in response to a public records request. Reviewing the defendants' production, the court applied a five-part balancing test to determine whether privilege was waived. Finding several factors immaterial, the court weighed heavily the defendants' unreasonable precautions taken to prevent disclosure. Rather than tasking an attorney to review and mark each document for privilege, the city clerk without the supervision of an attorney conducted an initial review of all responsive documents and then forwarded any potentially privileged items to the city attorney who separated those documents into three piles identified with only a single post-it note. All documents were then photocopied by the city clerk and interns, and no privilege log was produced or maintained. Finding the defendant's review unreasonable and that overriding issues of fairness weighed in favor of the plaintiff, the court determined privilege was waived for the 30 contested documents. In re The Reserve Fund Sec. and Derivative Litig., 2011 WL (S.D.N.Y. May 23, 2011). In this securities litigation, the Securities and Exchange Commission (SEC) requested production of approximately 60 communications between the defendant and his wife exchanged over his employer s system using his work address and employer-issued computer. Although the defendant asserted the s were protected by the marital communications privilege, the SEC argued the employer s policy extinguished any reasonable expectation of privacy a requisite factor to support marital privilege. Reviewing the employer s policy under the four-factor test from In re Asia Global Crossing, Ltd., the court found privilege did not extend because the defendant was aware of the policy that expressly banned personal use and reserved the rights of routine monitoring and third party access to employee s; in short, the s were not sent in confidence. Further, the court noted that it was unreasonable for employees working in heavily regulated industries in which companies are required by law to preserve communications for later use by regulators or other interested parties to have an expectation of privacy. Accordingly, the court granted the SEC s motion to compel the requested e- mails. Coleman v. Sterling, 2011 WL (S.D. Cal. Mar. 24, 2011). In this employment litigation, the plaintiffs, former executives of the defendant company, sought unredacted copies of four investigative reports prepared by a private law firm concerning alleged misconduct. Arguing the law firm provided legal advice or analysis on certain legal issues, the defendant redacted nine pages citing attorney-client privilege and work product doctrine from the 364 pages of the reports produced. In finding that privilege and work product protection applied to the documents, the court 275

276 noted that each page of the reports was marked as confidential, was prefaced with a warning to that effect, contained legal advice and analysis, and was prepared under the prospect of litigation. However, the court determined the defendant disclosed substantially all of the communications and relied on counsel's advice to justify its termination of the plaintiffs. In reliance of those facts and Federal Rule of Evidence 502(a), the court found the defendant waived privilege and ordered it to produce unredacted copies of the reports. In re Royce Homes, LP, 2011 WL (Bkrtcy. S.D. Tex. Mar. 11, 2011). In this bankruptcy litigation, the trustee sought production of documents that a key employee of the debtor company claimed as privileged. Despite using his work computer and company account for personal matters, the employee argued that he did not waive attorney-client privilege and maintained that only necessary third parties were privy to his communications. Rejecting this argument, the court focused on the debtor company's Electronic Communications Policy. The policy stated that nothing contained on any company electronic system would be considered private and permitted limited personal communications "with the understanding that personal communications may be accessed, viewed, read or retrieved by a company manager or employee" but that "Employees are NOT to disseminate any confidential information over the company s system." Finding the policy explicitly and straightforwardly banned confidential communications, the court rendered evidence of actual enforcement irrelevant. Noting the policy was memorialized in the employee handbook, the court also determined that actual or direct notification to employees was not required and that it was unreasonable for the employee to believe his s would remain confidential. Finding insufficient evidence that privilege applied or was waived, the court ordered production of the communications listed in the employee's privilege log. Long v. Fairbank Farms, Inc., 2011 WL (D. Me. Feb. 17, 2011). In this discovery dispute, the defendants sought to compel production, impose sanctions and require a third party defendant to show cause why it should not be held in contempt of court for accessing documents designated as for "Attorneys' Eyes Only." Despite finding discovery violations relating to two of five categories of documents allegedly withheld or destroyed, the court declined to impose sanctions or compel production as extraordinary relief had already been granted in a previous order permitting mirrorimaging. Regarding the next issue, attorneys for the third party defendant claimed they erroneously disseminated materials to their client marked "Attorneys' Eyes Only," pulled the documents back and confirmed the client had not since accessed them. However, the defendants produced evidence that a separate copy of the disclosure file was created and accessed using a USB storage drive on at least two occasions, and the file had been transferred to an ipod or iphone. In light of this evidence, the court ordered the third party defendant to show cause as to why it should not be held in contempt on account of the alleged misrepresentations. Carlock v. Williamson, 2011 WL (C.D. Ill. Jan. 27, 2011). In this civil rights litigation, the defendants sought to seal or strike the plaintiff s motion for sanctions for the defendants alleged spoliation of ESI. The defendants asserted that a litigation hold spreadsheet and an were inadvertently produced, and without these documents, the plaintiff s motion for sanctions was baseless. The plaintiff claimed any privilege was waived because it had been given unfettered access to the defendants server. Addressing the litigation hold spreadsheet, the court determined it was an ordinary business record not protected by work product doctrine and was discoverable based on the virtual absence of ESI produced by the defendants, which constituted a threshold showing that they failed to preserve documents. However, the court held the spreadsheet must be properly redacted and allowed the plaintiff to refile once the redaction was completed. Next, the court conducted a Rule 502 analysis and found that the defendants took reasonable steps to prevent and rectify disclosure of the privileged communication by obtaining and relying on a 276

277 protective order, and engaging in several meet and confer sessions. Finding no waiver of privilege, the court granted the defendants emergency motion to strike. Holmes v. Petrovich Dev. Co., LLC, 2011 WL (Cal. App. 3 Dist. Jan. 13, 2011). In this employment litigation, the plaintiff appealed the trial court s finding that attorney-client communications sent over her work computer were not privileged. Regarding the transmission of electronic communications in the workplace, the court stated that privilege does not extend to when the employee uses the employer s systems, is advised that the communications are not private, and is aware of and agrees to these conditions. Although the attorney-client communication was sent via the employer s account and the plaintiff was informed of the usage policy, she argued communications were not monitored in practice and this contradiction provided her a reasonable expectation of privacy. Distinguishing the factual circumstances from City of Ontario v. Quon and Stengart v. Loving Care Agency, Inc., the court noted that absent a company communication explicitly contradicting company policy, it is immaterial whether the company actually monitors communications. The court analogized the usage of an employer s communication systems to consulting an attorney in the employer s conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard and accordingly affirmed the trial court s finding that attorney-client privilege did not apply. In re Fontainebleau Las Vegas Contract Litig., 2011 WL (S.D. Fla. Jan. 7, 2011). In this bankruptcy litigation, the defendant claimed the third party waived privilege by producing three servers in response to a subpoena and court orders without conducting a review for either privilege or responsiveness. Seeking to use the information but avoid any adverse consequences, the defendant offered to eat the cost of searching the massive document dump of approximately 800 GB and 600,000 documents for relevant materials in exchange for the right to review and use the data free of the obligation to appraise or return any privileged documents. Reviewing the third party s conduct, the court found that its failure to conduct any meaningful privilege review prior to production constituted voluntary disclosure and resulted in a complete waiver of applicable privileges. Noting that more than two months after production the third party had not flagged even one document as privileged, the court rejected its belatedly and casually proffered objections as too little, too late. Accordingly, the court granted the defendant full use of these documents during pretrial preparations of the case, but ordered it to timely advise the third party of any facially privileged information it encountered upon review. GATX Corp. v. Appalachian Fuels, LLC, 2010 WL (E.D. Ky. Dec. 7, 2010). In this litigation regarding an alleged breach of two leases, the defendant argued the plaintiff intentionally produced hundreds of documents protected by privilege which resulted in a subject matter waiver under Fed.R.Evid Upon review of over 200 produced documents, the court determined that roughly 25 communications contained privileged material. In disagreeing with the plaintiff s claim that these documents were inadvertently produced, the court found that the plaintiff did not demonstrate the steps it took to comply with 502(b) as it failed to identify which document(s) it sought the return of. Noting that attorney-client privilege waiver does not automatically lead to subject matter waiver, the court found that the relatively low number of privileged documents produced did not necessarily warrant a finding that the disclosure was intentional. Further, the court noted that subject matter waiver exists only in cases where a party deliberately discloses privileged information in an attempt to gain a tactical advantage and, because the plaintiff did not use privilege as both a shield and a sword, subject matter waiver did not extend to documents withheld in the privilege log. Kmart Corp. v. Footstar, Inc., 2010 WL (N.D. Ill. Nov. 2, 2010). In this insurance indemnification litigation, the defendants sought sanctions and a protective order regarding 277

278 inadvertently produced privileged documents. Conducting the privilege analysis using Fed.R.Evid. 502, the court found that the documents at issue were privileged and inadvertently produced but determined that the defendants failed to take reasonable steps to prevent disclosure or seek their return in a timely manner. The court found that the number of privileged documents was small relative to the total production (less than 3% of the 4,500 materials produced), and a large percentage of the documents were easily identifiable as non-privileged as they were public court documents, leaving only a fraction that would have demanded more extensive review. Furthermore, the defendants did not employ software used to prevent disclosure, [or] any sort of records management system to screen the documents. The defendants efforts to rectify the error were also insufficient, as they failed to retrieve them until twelve days after their discovery at a deposition. Based on this analysis, the court denied the protective order and determined the defendants were not entitled to reclaw the material. The court also denied sanctions, finding the plaintiff made no misrepresentations regarding the privileged documents. Charm v. Kohn, 2010 WL (Mass. Super. Sept. 30, 2010). In this discovery dispute, the defendant moved to strike an inadvertently produced to preclude its further use in the litigation. The was disclosed when the defendant a BCC recipient accidentally responded to all recipients of an sent by his attorney to co-counsel and opposing counsel. Distinguishing this case from those in which counsel inadvertently discloses attorney-client privileged communications while producing voluminous documents, the court nevertheless considered whether counsel took reasonable steps to preserve the communication s confidentiality. The court found the counsel s use of BCC gave rise to a foreseeable risk, but agreed that the transmission was obviously unintended and was an easy mistake to make. Noting it was a close decision, the court stated that [a]n excessive readiness to find waiver would tend to erode the privilege that is tremendously important in our legal system. Giving consideration to the fact that counsel quickly demanded deletion of the inadvertently produced document, the court granted to motion to strike and cautioned against the temptation to seize opportunities arising from inadvertent disclosures. DeGeer v. Gillis, 2010 WL (N.D. Ill. Sept. 17, 2010). In this breach of contract litigation, the defendants objected to the plaintiff s assertion of attorney-client privilege and work product with regard to nine s and attachments. The plaintiff argued he exercised due diligence in asserting and maintaining privilege in advance of litigation and throughout the discovery process, while the defendants contended the plaintiff waived privilege and failed to provide sufficient information to determine whether the communications were privileged or protected. Addressing the six s sent via the plaintiff s person address, the court found they were likely pulled from the company server and added to the external hard drive that was given to the defendants counsel. Referencing Fed.R.Evid. 502(d), the court noted that the Stipulated Protective Order protected the inadvertent production of privileged material and thus found that privilege was not waived. Turning to the three s sent by the plaintiff to his attorney via the work address, the court determined that the employer believed privilege was not waived by communicating using work addresses on work-issued computers. Thus, privilege was not waived with respect to these three s. Rajala v. McGuire Woods, LLP, 2010 WL (D. Kan. July 22, 2010). In this securities, inter alia, litigation, the defendant moved for an entry of a clawback provision that would govern inadvertent disclosure and protect against privilege waiver, arguing the provision was necessary to prevent contentious, costly, and time consuming discovery disputes. The plaintiff argued that, in light of Fed.R.Evid. 502, a clawback agreement was not justified and that such an agreement would prevent arguments relating to care and reasonableness if documents were inadvertently 278

279 produced. Despite the plaintiff s arguments and the parties inability to reach an independent agreement, the court found that this case is precisely the type of case that would benefit from a clawback provision. Based on the substantial amount of ESI involved and the defendant firm s duty to protect its extensive client base, the court determined that the risk of inadvertent disclosure was high and that [s]uch a provision will permit the parties to conduct and respond to discovery in an expeditious manner, without the need for time-consuming and costly pre-production privilege reviews an outcome the court deemed consistent with the intent behind the recent privilege waiver amendments and rules. Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL (S.D.W.Va. May 18, 2010). In this insurance claim dispute, the defendants argued the plaintiff waived privilege following the inadvertent disclosure of privileged documents during discovery, including an alleged smoking gun . The defendant claimed the plaintiff failed to take reasonable precautions to prevent inadvertent disclosure, citing the nearly 980 attorney-client communications that were produced, and argued the plaintiff failed the five-factor Victor Stanley test. In response, the plaintiff argued the disclosure occurred due to an undetermined error in the vendor s software. Despite citing numerous steps the plaintiff undertook to prevent disclosure and the existence of a clawback agreement, the court found the plaintiff failed to perform critical quality control sampling and concluded the plaintiff did not take reasonable steps to prevent disclosure. As such, the efforts did not satisfy Fed.R.Evid. 502(b) and privilege was waived. In making its decision, the court also noted the was a bell which cannot be unrung, which influenced the defendants discovery requests and deposition questions. Cmty. Bank v. Progressive Cas. Ins. Co., 2010 WL (S.D.Ind. Apr. 8, 2010). In this insurance litigation, the plaintiff requested a protective order to prevent the defendant s use of privileged material and work product inadvertently disclosed by a non-party as evidence in a summary judgment motion. Although the plaintiff had previously returned privileged documents inadvertently sent to the defendant on numerous occasions, the court found the defendant s assurances that it would afford the plaintiff the same courtesy were too amorphous to be binding. The use of the word courtesy instead of agreement in the parties communications demonstrated that the expected reciprocal conduct was moral in nature, not a legal right, and the communications did not reference applicability to non-parties. Citing Fed.R.Evid. 502(b), the court also found the plaintiff took no reasonable precautions to prevent the disclosure since no supervision of the non-party s production occurred. However, the court determined the defendant violated Fed.R.Civ.P. 26(b)(5) by using the privileged exhibits in its summary judgment motion prior to resolution of the dispute. Based on this behavior, the court ordered the defendant to pay onehalf of the plaintiff s fees and costs associated with the motion and prohibited use of the exhibits as substantive evidence. Stengart v. Loving Care Agency, Inc., 2010 WL (N.J. Mar. 30, 2010). In this employment discrimination litigation, the defendant appealed the Appellate Division s ruling that attorney-client privilege outweighs the defendant s corporate Internet communications policy. The plaintiff accessed her personal, password-protected Yahoo! account on her work-issued laptop to send s to her attorney, which the defendant then accessed, claiming its Internet use and communications policy mandated conversion of s into business records. Reviewing the company policy, the New Jersey Supreme Court determined the plaintiff did not have adequate notice that s from her personal account were subject to company monitoring since the policy did not address personal, web-based accounts. Based on this and the strong public policy considerations behind protecting the attorney-client privilege, the court upheld the Appellate Division s ruling. The court further concluded that employers have no need to read the specific 279

280 contents of personal, privileged, attorney-client communications in order to enforce a corporate policy. Finally, the court remanded to the trial court the decision of whether sanctions should be imposed on the defendant s counsel for reading the privileged s without notifying the plaintiff about them. Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 2010 WL (D.D.C. Feb. 12, 2010). In this litigation, the defendants filed a renewed motion to compel documents withheld by the plaintiffs under the claim of privilege. First, the court addressed whether privilege existed in the first place by examining the parties involved and determined privilege existed despite the presence of two consultants at the meetings, since they became integral members of the team assigned to deal with litigation and legal strategies. Next, the court determined whether privilege was waived or forfeited, noting that Fed.R.Evid. 502 abolished the dreaded subject-matter waiver. Thus, the defendants argument that the disclosure of nonprivileged information should constitute a waiver of privileged information of the same subject matter was flat out wrong, since the question is whether the information, both disclosed and undisclosed, shares the same subject matter and ought in fairness to be considered together. Based on this analysis, the court denied the defendants arguments that privilege was waived and ordered the plaintiffs to provide documents marked as privilege for an in camera review. Seger v. Ernest-Spencer Metals, Inc., 2010 WL (D.Neb. Jan. 26, 2010). In this personal injury case, the defendants requested production of a non-party s s and previously produced privileged documents. In support of their motion, the defendants argued that the information sought was not privileged, but if it was, any claim of privilege had been waived. Recognizing the nonparty s failure to take reasonable precautions to prevent inadvertent disclosure of privileged information and its lack of promptness in asserting a claim of privilege, the court found the disclosure to be knowing and intentional and granted the defendants motion to compel. Turning to the production issue, the court largely disagreed with the non-party s undue burden argument with respect to the two disputed production requests. The court found that narrowing the search terms would provide the necessary limitations on the request and left open the resolution of costshifting pending more accurate estimates. Silverstein v. Federal Bureau of Prisons, 2009 WL (D. Colo. Dec. 14, 2009). In this discovery dispute, the plaintiff filed a motion for determination of privilege waiver regarding a single relevant document, arguing its production resulted in a subject matter waiver. After its initial determination that the document was protected by both attorney-client privilege and work product, the court relied on Fed.R.Evid. 502(b) to establish the scope of the waiver. First, the court determined the disclosure was intentional not inadvertent as defined by Rule 502, since it was originally examined and withheld by the defendants' counsel. Citing the defendants' knowledge of the production and failure to take reasonable steps to rectify the erroneous disclosure, the court held that the defendants had intentionally disclosed the material to gain advantage in litigation, which justified a subject matter waiver. Noting the plaintiff was not entitled to a "discovery free-forall," the court also held that opinion work product would remain protected. Amobi v. District of Columbia Dep't of Corr., 2009 WL (D.D.C. Dec. 8, 2009). In this litigation, the court addressed the parties' motions related to the production of a memorandum created by an attorney for the defendants. The defendants argued the disclosure was inadvertent and steps were taken to rectify the error immediately, whereas the plaintiffs argued the memorandum was either not privilege-protected or privilege had been waived. After determining that the document was protected by the work product doctrine, the court used the three-part test set forth in Fed.R.Evid. 502(b) and found privilege was waived. In support of this finding, the court cited the defendants' failure to explain the methods used to prevent disclosure in order to establish 280

281 the magnitude of the error. The court reasoned that "defendants' failure to take reasonable efforts to prevent the disclosure in the first place doom[ed] their reliance on the rule." However, the court refused to endorse the plaintiffs' argument that lawyers could never make inadvertent mistakes, claiming that would "gut [Rule 502] like a fish." Multiquip, Inc. v. Water Mgmt. Sys. LLC, 2009 WL (D. Idaho Nov. 23, 2009). In this dispute, the defendants moved to exclude the plaintiff's use of a privileged obtained after one defendant inadvertently included a third party via the "autofill" feature. The third party then passed the chain to the plaintiff's counsel. After discovering the mistake, the defendants requested return of the , which the plaintiff denied claiming Fed.R.Civ.P. 26(b)(5)(B) only applied to documents turned over in discovery. Using Fed.R.Evid. 502(b) to determine whether disclosure constituted a waiver, the court determined that the disclosure was inadvertent, that the defendants took reasonable steps to prevent disclosure because reliance on the "autofill" feature was not unreasonable and that the defendants acted promptly to rectify the error. Based on this analysis, the court found privilege was not waived and granted the defendants' motion to exclude the privileged information. Chick-Fil-A and CFA-NC Townridge Square, LLC v. ExxonMobil Corp., 2009 WL (S.D. Fla. Nov. 10, 2009). In this environmental litigation, the plaintiffs sought production of all work product-protected documents related to the subject matter of a privileged memorandum that the defendant voluntarily produced. Following the court's determination that the defendant's intentional, voluntary disclosure to the plaintiffs waived the work product protection, the defendants argued that the waiver's scope should be limited to the information actually disclosed. Turning to Fed.R.Evid. 502(a), the court determined that disclosure of work product results in a subject matter waiver only if the additional materials "ought in fairness to be considered together" with the memorandum. Finding a subject matter waiver to be warranted, the court relied on federal case law, interpreting Rule 502(a) to determine that subject matter waiver was limited to fact work product. Therefore, the court granted the plaintiffs' motion in this respect and ordered the defendant to produce fact work product materials. Alamar Ranch, LLC v. County of Boise, 2009 WL (D. Idaho Nov. 2, 2009). In this Fair Housing Act lawsuit, the non-party's attorney requested the return of privileged documents obtained through the plaintiff's previous subpoena. The privileged information included s sent to the non-party attorney from one of his clients via her work address. The plaintiff argued that any privilege was waived on account of the company's privacy policy, which included the right to review and disclose all electronic messages created. Using a four-part balancing test that balanced the expectation of privacy against the lack of confidentiality, the court found that the company placed all employees on notice that s would become the employer's property. The court also noted that the client's apparent lack of awareness of the privacy policy was unreasonable "in this technological age" and that the client's address itself clearly put the non-party attorney on notice of a potential issue of confidentiality. Thus, the court determined privilege was waived with respect to the s sent using the client's work account. Leor Exploration & Prod. LLC v. Aguiar, 2009 WL (S.D. Fla. Sept. 23, 2009). In this business litigation, the plaintiffs objected to the special master's ruling regarding two exhibits both s in which the first was classified as attorney-client privileged and the second as protected work product. Discussing the first exhibit, the court found there was no reasonable expectation of privacy because the was sent by the defendant (a former employee of the plaintiffs) through the plaintiffs' server. The plaintiffs' employee handbook stated that all electronic communications were owned by the plaintiffs and that no expectation of privacy existed. Thus, the court overruled the special master's report and found no attorney-client privilege existed with the first exhibit. The 281

282 court also granted the plaintiffs' objection regarding the second exhibit because it was not prepared in anticipation of litigation and could not therefore be protected work product. United States v. Sensient Colors, Inc., 2009 WL (D.N.J. Sept. 9, 2009). In this cost recovery action filed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, the defendant filed a motion to compel production, alleging the plaintiff waived its privilege and work product objections. Subsequent to its production of approximately 45,000 documents, the plaintiff identified 214 as inadvertently produced. The plaintiff argued the joint discovery plan in place precluded a privilege waiver. Rejecting that argument, the court noted that the plan did not excuse the parties from meeting the requirements of Federal Rule of Evidence 502(b). Separating the documents into three different sets, the court conducted its Rule 502 analysis. Regarding the first set, the court found the plaintiff's production was inadvertent and that the plaintiff took reasonable efforts to rectify the error after responding to the defendants' letter describing the error within eight work days. However, the court found the plaintiff failed to reasonably rectify the error with respect to the last two document sets, and thus held the privilege was waived. Coburn Group, LLC v. Whitecap Advisors LLC, 2009 WL (N.D. Ill. Aug. 7, 2009). In this breach of an oral contract dispute, the defendant requested the return of a half-page long e- mail the defendant claimed was protected work product. In opposition, the plaintiff made several arguments including that the was not protected and that, if it was, the inadvertent production waived protection. After determining the constituted work product, the court considered the waiver issue under Fed.R.Evid The court interpreted the "inadvertent disclosure" portion of Rule 502 as asking whether the party intentionally produced a privileged or work product protected document and found the defendant did not intend to produce the . Next, the court considered prior case law regarding what constituted "reasonable steps" to prevent an inadvertent disclosure. The court discussed the defendant's thoroughly documented review process and noted that in this case only three documents slipped through the review of 72,000 document pages. Finding that Rule 502 would have no purpose if the inadvertent production of a single privileged document deemed the document review process unreasonable, the court granted the defendant's motion and ordered the plaintiff to return all copies of the . Stengart v. Loving Care Agency, Inc., 2009 WL (N.J. Super. A.D. June 26, 2009). In this ongoing discrimination litigation, the plaintiff appealed the lower court s denial of her motion to require the defendant to return all copies sent by her to her attorneys on work-issued laptops through her personal, web-based account. The defendant alleged its electronic communications policy mandated the conversion of s and other Internet use and communication into company business records. The plaintiff maintained that the defendant had never officially adopted the policy or enforced it. The court noted the lack of certainty about the exact meaning and scope of the policy s language created by multiple versions of the policy and stated that any company policy must reasonably relate to a legitimate business interest. Balancing the enforceability of the company s policy with the delicacy of attorney-client privilege, the court determined the policy must give way. Thus, the court reversed the lower court s decision and concluded the s sent over the plaintiff s personal Yahoo! account remained privilege protected. The court also remanded the case to determine whether the defendant s counsel should be disqualified from further representation. Hohider v. United Parcel Serv., Inc., 2009 WL (W.D.Pa. Apr. 28, 2009). In this litigation, the defendant filed an emergency motion to stay the court's order requiring in camera review of alleged work product documents withheld by the defendant. Noting it was "very troubled by defendant's efforts to delay or stop the court's resolution" of the defendant's potential preservation 282

283 failures, the court determined an in camera review was necessary. The court was also troubled by the defendant's request to the court of appeals to stay the special master's investigative actions and believed this action raised suspicions about the defendant's motives. Accordingly, the court denied the defendant's motion and directed the special master to submit his report and recommendation regarding the privilege assertions. The court also noted that an argument against in camera review by a trial court was unprecedented because this review is often the only way to determine whether documents are privileged. D'Onofrio v. SFX Sports Group, Inc., 2009 WL (D.D.C. Apr. 1, 2009). In this ongoing wrongful termination litigation, the defendants agreed to provide the plaintiff's counsel with attorney notes taken by the defendants under certain conditions. Taking exception to these conditions, the plaintiff's counsel argued the plaintiff should be granted access to the attorney notes for relevancy determinations. Magistrate Judge John M. Facciola granted the motion in part, finding the defendants were allowing access to these documents for efficiency's sake not because the plaintiff was entitled to the documents. The court also noted that it is "difficult to unlearn something once it is learned," and therefore the plaintiff should not be allowed access to the privileged documents. Finally, the court agreed with the plaintiff that there is no need for the plaintiff's expert to confer with the defendants' expert regarding methodology prior to conducting sampling of the documents. Heriot v. Byrne, 2009 WL (N.D.Ill. Mar. 20, 2009). In this copyright dispute over the madefor-television documentary, The Secret, the defendants and plaintiffs both sought production of documents. The defendants sought sequestered documents that had been inadvertently produced as a result of mistakes made by the plaintiffs' vendor, arguing the plaintiffs' counsel was "asleep at the switch" by not re-examining the documents received from the vendor. Applying Fed.R.Evid. 502, the court held privilege of certain documents was not waived, finding the plaintiffs took reasonable procedures to prevent inadvertent disclosure and promptly notified the defendants of the disclosure. The court also determined that no duty to re-review exists since it would be against the spirit of Rule 502. Turning to the plaintiffs' motion (which sought production of 132 documents identified in a privilege log), the court reserved its ruling on privilege protection. The court noted that the documents presented were a "befuddling assemblage" and that the party asserting privilege is responsible to organize the documents in a manner that enables efficient review. Accordingly, the court ordered the defendants to submit an amended privilege log and a revised compilation of documents after they are organized chronologically. Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL (D.Colo. Mar. 10, 2009). In this employment contract litigation, the plaintiff sought a court-ordered e-discovery plan for inspection of the mirror image of the defendant's hard drive. Granting the motion, the court set forth the following protocol: the defendant shall redact privileged and confidential data from the mirror image hard drive, and provide a detailed privilege log and the redacted mirror image to the plaintiff; the parties shall then confer and agree on search terms with assistance from their respective forensic experts; the plaintiff shall conduct the forensic search and provide the defendant with a Bates labeled hard copy of relevant ESI which the defendant will then review for responsiveness and privileged data, providing a privilege log as necessary. Schanfield v. Sojitz Corp. of Am., 2009 WL (S.D.N.Y. Mar. 6, 2009). In this employment discrimination suit, the defendants sought production of thirty-six purportedly privileged s identified in the plaintiff's privilege log. The defendants argued that these s between the plaintiff and his friends, former colleagues and family members that are attorneys, were not protected by privilege. Addressing each category, the court held that the s sent to friends were not protected since the plaintiff failed to indicate that they were prepared in anticipation of litigation. The court also found that work product protection was waived with respect 283

284 to the s with colleagues since the material was disclosed. Finally, the court determined the e- mails sent to family members that are attorneys were not attorney-client privileged because a nonattorney was copied on the s; however, those s constituted work product because they were prepared in anticipation of litigation. SEC v. Badian, 2009 WL (S.D.N.Y. Jan. 26, 2009). In this securities litigation, a non-party corporation, Rhino, moved to claw back approximately 260 privileged documents allegedly produced inadvertently in Rhino claimed that language accompanying the production, which certified that production of any document shall not be construed as waiver of any privilege, required the SEC to return the documents. To determine whether privilege was waived, the court analyzed the four factors set forth in Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985): (1) reasonableness of the precautions taken to prevent inadvertent disclosure; (2) time taken to rectify the error; (3) extent of the disclosure; and (4) overarching issues of fairness. Factor one weighed in favor of privilege waiver as Rhino presented no evidence of privilege review prior to the production. Factor two weighed in favor of waiver as Rhino waited five years before it sought to claw back some of the production. Factor three also weighed in favor of waiver as the court found 260 documents to be a significant number of documents. The last factor also weighed in favor of waiver as the court was unable to find a reason to disregard Rhino s carelessness. With all four factors weighing in favor of privilege waiver, the court concluded that Rhino waived any privilege it may have asserted on the production. Richards v. Legislature of the Virgin Islands, 2009 WL (D.Virgin Islands Jan. 9, 2009). In this tort and civil rights litigation, the defendants sought the return of privileged information inadvertently produced. The plaintiffs argued the attorney-client privilege was waived when the documents were produced. Agreeing with the plaintiff, the court denied the motion as the defendants did not review the documents prior to production. Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL (M.D.Fla. Jan. 8, 2009). In this insurance litigation, the defendants objected to the special master s recommendation that the court deny a blanket finding of privilege or waiver and that any privileged documents produced in response to a court order for expedited production would not constitute a waiver. The special master determined the plaintiffs clearly established intent to protect privileged documents by taking appropriate measures prior to the production. Additionally, the special master concluded the opposition s first look at potentially privileged documents was punishment enough for any transgressions in the plaintiffs document management. Describing the order as a narrow ruling, the court denied the defendants objection. The court reserved the right to consider the question of waiver, if necessary, in response to an appropriate motion after the court determines if the plaintiffs have established privilege. Reckley v. City of Springfield, Ohio, 2008 WL (S.D.Ohio Dec. 12, 2008). In this employment litigation, the defendant produced five s of which it later claimed were protected by the attorney-client privilege and inadvertently produced. Therefore the defendant sought return of the s and plaintiff argued that the production waived the privilege. Applying Fed.R.Evid. 502(b), the court held that privilege was not waived. The court noted that at least some of the inadvertently disclosed s were labeled attorney-client privileged and that the defendant took prompt steps to claim privilege and seek return of the s after they were disclosed. The court also noted that the disclosure took place in the context of electronically stored information; a context particularly intended to be addressed by Rule 502. Bro-Tech Corp. v. Thermax, Inc., 2008 WL (E.D.Pa. Dec. 11, 2008). In this ongoing trade secrets misappropriation litigation, the plaintiffs sought production of a privileged document that the defendants previously clawed back pursuant to a voluntary clawback agreement. The 284

285 defendants opposed the request, arguing that the challenge provision in the clawback agreement specifically called for written notice of plaintiffs objection within five business days of the receipt of defendants written demand for the return of the erroneously produced document. Because plaintiffs failed to follow the challenge provision of the clawback agreement, the defendants argued the motion was untimely. Analyzing the clawback agreement, the court found the plaintiffs motion to be untimely and declined to order the defendants to produce the document. Relion, Inc. v. Hydra Fuel Cell Corp., 2008 WL (D.Or. Dec. 4, 2008). In this patent litigation, the plaintiff moved to enforce a stipulated protective order and sought the return of two inadvertently produced s, alleging they were attorney-client privileged. Analyzing the plaintiff s conduct using Fed.R.Evid. 502(b), the court determined that the plaintiff did not pursue all reasonable means of preserving the inadvertently produced s. The court based its decision on the fact that the plaintiff did not assert privilege until four months after the s were produced, and then only in response to a letter from defense counsel discussing the two s and the fact that the plaintiff had multiple opportunities to inspect the documents prior to production. The court held that such behavior was tantamount to a failure to pursue all reasonable means of preserving the confidentiality of the documents, which resulted in waiver of the privilege. Gateway Senior Hous., Ltd. V. MMA Fin., Inc., 2008 WL (E.D. Tex. Dec. 4, 2008). In this contract litigation, the plaintiffs moved for a determination of privilege waiver and sought sanctions, alleging the defendants withheld relevant information. The plaintiffs argued that privilege with regard to inadvertently produced s was waived because the defendants failed to list them in a privilege log, and that sanctions were appropriate because two key hard drives were never produced. Conversely, the defendants argued that everything requested was produced and that privilege was timely asserted after notice of the disclosure. Finding the defendants failed to carry the burden of proving privilege and unreasonably delayed in disclosing the existence of the alleged privilege documents, the court held the attorney-client privilege was waived. Regarding sanctions, the court granted a discretionary adverse inference that the missing hard drives contained information unfavorable to the defendants evidenced by its failure to produce them along with reasonable expenses and attorneys fees associated with bringing the current motion. Alcon Mfg., Ltd. v. Apotex Inc., 2008 WL (S.D.Ind. Nov. 26, 2008). In this patent infringement lawsuit, the plaintiffs argued the defendants should delete or return an inadvertently produced electronic document containing privileged information and that the document should be stricken from the expert report pursuant to a stipulated protective order. The defendants argued that the plaintiffs waived privilege when they failed to object to the document s introduction during two previous depositions. Finding the plaintiffs had complied with the protective order by asserting privilege within days of discovering the inadvertent production, the court ordered the defendants to delete or return the privileged document and to redact any references to it. Laethem Equipment Co. v. Deer and Co., 2008 WL (E.D.Mich. Nov. 21, 2008). In this ongoing breach of contract dispute, inter alia, the defendant sought production of electronically stored information (ESI) and an order establishing waiver of the attorney-client privilege based on plaintiffs alleged discovery misconduct. The defendant argued that the plaintiffs withheld relevant s, were untruthful in past discovery responses and waived privilege by inadvertently disclosing two disks. Opposing the motion, the plaintiffs argued they had properly responded to each of the defendant s requests and that additional production would be an undue burden. As jurisdiction was based on diversity of citizenship and absent objection from either party, the court analyzed the privilege waiver issue under new Fed.R.Evid. 502(b). The rule establishes that disclosure does not operate as a waiver if: (1) the disclosure was inadvertent, (2) reasonable steps were taken to prevent disclosure and (3) reasonable steps were taken to rectify the error. Finding 285

286 each of these criteria satisfied, the court held that privilege was not waived. The court noted that Fed.R.Evid. analysis does not take into consideration alleged discovery abuses, focusing instead on the disclosure of the privileged information itself. Rhoads Indus., Inc. v. Bldg. Materials Corp. of America, 2008 WL (E.D.Pa. Nov. 14, 2008). In this breach of contract litigation, the defendants sought an order determining attorneyclient privilege to be waived by plaintiff s production of over eight hundred allegedly privileged documents. The defendants argued that the production was careless, the plaintiff delayed in seeking return of the documents and the plaintiff failed to produce complete and accurate privilege logs. The court applied the test of newly enacted Fed.R.Evid. 502, which weighs three factors in determining whether an inadvertent disclosure should constitute a waiver: 1) whether the disclosure was inadvertent, 2) whether the holder of the privilege took reasonable steps to prevent disclosure and 3) whether the holder of the privilege took reasonable steps to rectify the error. The court held that once the producing party has shown at least minimum compliance with the three factors in Rule 502(b) but when reasonableness is still in dispute, the court should look to the traditional five factor test set forth by Fidelity & Deposit Co. of Maryland v. McCulloch: 1) reasonableness of precautions taken to prevent inadvertent disclosure; 2) number of inadvertent disclosures; 3) extent of disclosure; 4) delay and measures taken to rectify disclosure; and 5) whether overriding interests of justice would or would not be served by relieving the party of errors to find evidence of an inadvertent waiver. Finding the first four factors to be in favor of the defendants and the fifth factor to strongly favor the plaintiff, the court determined there was no waiver of privilege of the remaining documents. Truckstop.net, LLC v. Sprint Corp., 2008 WL (9th Cir. Oct. 28, 2008). In this contract dispute, the defendant filed an interlocutory appeal following the district court s order. The district court s order redacted privileged portions of an inadvertently produced but found that other portions of the were not protected by the attorney-client privilege. Finding a lack of appellate jurisdiction under the collateral order doctrine because the privileged information had already been disclosed, the court dismissed the appeal. The court noted that while the disclosure of the was unfortunate, the chicken has already flown the coop the alleged harm from disclosure has already occurred. Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 2008 WL (Pa.Super. Sept. 22, 2008). In this breach of contract case, inter alia, the defendants appealed the trial court s order requiring the production of two of the defendants broken computers. The defendants argued against production, claiming the computers may contain privileged documents. In response the plaintiffs argued the defendants previously agreed to produce the computers at trial. Disagreeing with the defendants, the court held the privilege was waived as a result of the defendants prior agreement to produce the computers. Cartwright v. Viking Indus., Inc., 2008 WL (E.D.Cal. Sept. 11, 2008). In this products liability class action, the plaintiffs filed a motion to compel production of defendants privilege log identifying withheld documents, and the defendants moved for a protective order. The plaintiffs argued the defendants failure to provide a privilege log should result in a waiver of privilege. The defendants countered that production requests should be narrowly construed to not seek privileged information, and that any such production would be unduly burdensome. Disagreeing with the defendants undue burden argument, the court ordered production of the privilege log. However, the court did not believe a waiver of privilege was appropriate, noting the delay was excusable due to a mutual misunderstanding. United States v. O Keefe, 2008 WL (D.D.C. Aug. 19, 2008). In this criminal prosecution, the co-defendant sought further discovery, including Department of State s, communications 286

287 memoranda and post indictment analyses. The government refused to provide this information arguing the requested documents would necessarily result in work product disclosure and not be discoverable. Finding defendant s response equivocal, Magistrate Judge John M. Facciola ordered the government to search for documents that fall within the discovery request and to produce them. Citing Rule 26(b)(5) of the Fed.R.Civ.P., Judge Facciola required the government to create a privilege log of documents withheld from production, explicitly describing documents so as to prevent the necessity of in camera review. See also United States v. O Keefe, 2008 WL (D.D.C. Feb. 18, 2008). United States v. General Maritime Mgmt., 2008 WL (S.D.Tex. July 21, 2008). In this criminal prosecution, the government s material witness filed a motion to assert attorney-client privilege and for reconsideration of the court s previous order to disclose a mirror image of the witness computer hard drive. The witness previously provided the government with voluntary consent to search and create a forensically sound image of his computer s hard drive. Subsequent to this search, the government provided the defendants with all material relevant to this case. The defendants argued for disclosure of the imaged hard drive claiming the witness voluntary consent waived the attorney-client privilege. Agreeing with the defendants, the court held that the voluntary disclosure of the hard drive to the government resulted in waiver of any attorney-client privilege and ordered the government to produce the mirror image in its entirety. In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL (D. Del. June 4, 2008). In this antitrust litigation, the plaintiffs moved to compel production of notes from the defendants attorneys who interviewed the defendants custodians as part of an investigation regarding compliance with electronic evidence preservation obligations. The special master found that the parties did not agree to extend an earlier privilege waiver agreement to these notes. However, the special master found that the privilege was waived with regard to the substance of the custodian statements that were voluntarily disclosed by the defendants. It was determined that to find otherwise would allow the defendants to use its sword to assert facts while at the same time shield the plaintiffs from the defendants assertion that it had discovered human errors in its execution of its document preservation plan. The special master ultimately concluded that the protection of the non-core work product was waived, so the plaintiffs were entitled to the information. Judge Joseph Farnan, United States District of Delaware, adopted the special master s report and recommendation regarding privileged and work product information. Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL (D. Md. May 29, 2008). In this copyright infringement case, the plaintiff sought a ruling that 165 electronic attorney-client privileged and work-product protected documents produced in discovery were discoverable. The plaintiff claimed privilege was waived because the defendants failed to conduct a reasonable privilege review prior to production. The defendants claimed the waiver of privilege was inadvertent, since they conducted a reasonable search using seventy keyword search terms to review potentially discoverable documents. Noting all keyword searches are not created equal, the court used the intermediate test mentioned in Hopson v. Mayor of Baltimore balancing several factors to determine whether the waiver of privilege was inadvertent. Determining the defendants did not take reasonable precautions to prevent inadvertent disclosure, the court found the defendants waived their privilege. Additionally, the court noted several measures could have helped prevent this waiver, including the usage of a clawback (or other non-waiver) agreement the defendants voluntarily abandoned and/or complying with the Sedona Conference Best Practices for use of search and information retrieval. St. Cyr v. Flying J, Inc., 2008 WL (M.D. Fla. May 16, 2008). In this negligence litigation, the plaintiff filed a motion to prevent the defendant from using the plaintiff s work-product 287

288 correspondences to his expert. Previously, the plaintiff s expert furnished a four-page letter and an authored by the plaintiff s counsel to the defendant in paper format. The defendant argued that this voluntary disclosure waived work-product protection, and also argued that Fed.R.Civ.P. 26(b)(5)(B) applies only within the context of electronically stored documents. The court disagreed, holding that Fed.R.Civ.P. 26(b)(5)(B) applies to both paper and electronic documents. However, the court held that Fed.R.Civ.P. 26(b)(5)(B) merely provides a procedure for addressing the issue of waiver and the voluntary disclosure of a work product document into the hands of the adversary results in a waiver of the privilege. Bro-Tech Corp. v. Thermax, Inc., 2008 WL (E.D.Pa. Mar. 17, 2008). In this trade secret misappropriation suit, the defendants objected to a magistrate judge s order requiring disclosure of forensically sound images of data storage devices without any scope or privilege filtering. The plaintiffs sought production without limitation, claiming review of the entire record was necessary to determine defendant s compliance with an earlier order. Additionally, the plaintiffs asserted the defendants waived privilege upon disclosure of the servers contents to a third party. Finding the defendants satisfied an exception to the privilege waiver rule since the content disclosed to a third party was necessary for informed legal advice, the court overruled a portion of the magistrate s order, and limited the production in scope and privilege. Parkdale Am., LLC v. Travelers Cas. and Sur. Co. of Am., Inc., 2007 WL (W.D.N.C. Nov. 19, 2007). In this declaratory judgment action, the defendant s insurance company sought discovery of documents through several interrogatories and requests for production of documents. The plaintiffs objected to each request asserting that the information prepared in anticipation of litigation is protected work-product under Fed. R. Civ. P. 26(b)(3). The plaintiffs also contended that production of electronically stored information would present undue burden and cost. The court ultimately ordered production of asserting that it may include relevant and material evidence and that the plaintiffs failed to meet their burden in establishing inaccessibility. Finding opinion work-product to be more carefully protected, the court ordered production of all materials not considered opinion work-product. Further, the court ordered production of information revealed to or discussed in the presence of third parties as it does not fall under work-product protection. Scott v. Beth Israel Med. Ctr., Inc., 2007 WL (N.Y.Supp. Oct. 17, 2007). In this case, a former doctor-employee sought contractual damages arising from the defendant s alleged termination without cause. On remand following reversal of the district court s earlier summary judgment order, the plaintiff sought a protective order requiring the return of correspondence between himself and his attorney claiming attorney client privilege and the work product doctrine. The defendant argued that their policy states that company is to be used solely for business purposes and that employees have no personal privacy rights in any material created or communicated on the company computer systems. The court agreed and denied the plaintiff s motion since the defendant notified the plaintiff of the use and monitoring policies. United States v. Warshak, 2007 WL (S.D.Ohio Aug. 21, 2007). In this criminal matter, the defendants moved to bar the government from using evidence allegedly obtained in violation of the attorney-client privilege doctrine. While the government asserted its case was not based on privileged information, the defendants questioned the government's apparent decision to segregate the computers of three in-house attorneys without comprehensively screening other computers for privileged materials. The defendants also raised concerns with regard to the amount of time a U.S. postal inspector possessed certain computers containing privileged information. Finding the defendants' questions to be well-founded, the court held there were temporal and substantive gaps that could only be resolved by sworn testimony and ordered an evidentiary hearing to ascertain the 288

289 extent to which the government relied on privileged materials to obtain the evidence it intended to use at trial. In re Vioxx Prod. Liab. Litig., 2007 WL (E.D.La. Aug. 14, 2007). In this multidistrict product liability suit, Merck, the producer of the pain medication at issue in this dispute, claimed attorney-client privilege on numerous electronic documents and refused to produce them. Specifically, Merck produced over two million documents and claimed privilege as to approximately thirty thousand, all of which the court reviewed individually in camera and made individual privilege rulings. Appealing the court s privilege rulings, Merck sought relief from the Fifth Circuit Court of Appeals. The appeal was denied on jurisdictional grounds, but the Appeals Court did suggest the lower court reexamine a subset of disputed documents, selected by Merck, pursuant to a different review protocol. Subsequently, the court appointed a special master and a special counsel to reexamine the subset of documents, promulgate substantive guidelines and issue a set of initial recommendations regarding the documents claimed as privileged. Following Merck s time to object to the special master s recommendations, the court entered the report into the record and reproduced substantive portions of the special master s report. The report was attentive to the issues faced by corporations where their in-house legal department assists on numerous fronts and that drug companies are heavily regulated by the food and drug administration when individual privilege decisions were made for each document at issue. The court adopted the special master s review protocol and recommendations. Kingsway Fin. Serv. Inc. v. Pricewaterhouse-Coopers LLC, 2007 WL (S.D.N.Y. June 27, 2007). In a securities suit, the parties entered an agreement whereby inadvertent production of a purportedly privileged document would not operate as a waiver of privilege. In the issue at hand, the defendant motioned the court for an order to compel the production of an exchanged between the plaintiff s executive and attorney. The plaintiff originally produced the targeted inadvertently, but later included it as an attachment on a motion and served it on all the defendants. The court held that as the plaintiff s second production of the was not inadvertent, it waived the attorney-client privilege and therefore the defendant s motion to compel was granted. Mugworld, Inc. v. G.G. Marck & Assoc., Inc., 2007 WL (E.D.Tex. June 15, 2007). In a suit alleging breach of contract, the defendant motioned the court to issue a protective order to designate an inadvertently produced as confidential. The defendant claimed the contained trade secret information regarding a list of chemicals used in the manufacture of a product. The defendant produced the in January 2006, and the was used by the plaintiff in a deposition of the defendant s president in October 2006 without objection. Several months later, in February 2007, the defendant sought to designate the document as confidential. The court denied the defendant s motion and held that even if the document had contained trade secret information the defendant waived any grounds for protection due to its delay in seeking protection. Gragg v. Int l Mgmt. Group (UK), Inc., 2007 WL (N.D.N.Y. Apr. 5, 2007). In an action initially centering on various breach of contract and related claims, the magistrate judge found the defendant s disclosure of four privileged s to plaintiff s counsel was inadvertent and did not provide a basis for waiving attorney-client privilege. The s in question were compiled along with approximately 200 other s by an assistant in the defendant s in-house legal department and produced on CD-ROM. Neither outside nor in-house counsel reviewed the CD-ROM for privileged material before it was sent to the plaintiff. After an appeal by the plaintiff, the magistrate s discovery order was reversed and remanded for additional consideration. In the interim, the plaintiff supplemented his original complaint with several federal RICO related claims. Characterizing the 289

290 bulk of the claims as matters of federal question jurisdiction, the magistrate judge held that federal law governed any privilege determinations in the suit. Weighing factors outlined under federal law, the magistrate found the defendant had waived privilege as to the inadvertently produced s. In particular, he cited a lack of reasonable precautions to prevent disclosure and the relatively low volume of s produced in total as reasons for that conclusion. However, the magistrate declined to find that the scope of the waiver extended to the subject matter of the s, as the plaintiff urged, and held that the waiver only extended to the produced materials. Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL (D. Kan. Feb. 23, 2007). In this discovery dispute in an antitrust litigation, the defendant moved the court to order the plaintiff to supplement its privilege logs according to the parties pre-trial electronic discovery protocol. The agreed upon protocol defined the scope of discoverable electronic information and provided for specific procedures if any electronic documents were withheld from discovery based on privilege. The defendant argued that the plaintiff did not follow the agreed upon protocol when submitting its privilege log because it did not list sufficient information on the log in order to enable the defendant to properly identify whether the plaintiff s withheld documents were in fact privileged. The defendant further argued that the plaintiff s privilege log did not meet the standards as set by local caselaw and the Federal Rules of Civil Procedure. The plaintiff argued that it did comply with the privilege log and that the defendant itself did not comply with the agreed upon electronic discovery protocol and therefore cannot be punished. The court held that some of the plaintiff s submissions were insufficient according to the parties protocol agreement and that the privilege log must be supplemented in some areas. The court refused to order sanctions for the privilege log insufficiencies. Bitler Investment Venture II, LLC v. Marathon Ashland Petro., LLC, 2007 WL (N.D. Ind. Feb. 7, 2007). In a case regarding breach of contract claims, inter alia, the defendant filed a motion to compel the production of s sent to the plaintiff s damages assessment expert prior to the issuance of an expert report. The s in question were communications between the plaintiff s attorney and the plaintiff. The plaintiff s attorney forwarded these s to the expert prior to his final report. The plaintiff argued the s were protected by the attorney-client and work-product privileges. The plaintiff also argued the s had nothing to do with the expert s opinion. The defendant argued it had a right to discover any information used by the expert which he based his opinion on for trial. The court, in granting the defendant s motion, noted that although the attorney-client privilege may apply in this situation, the s were disclosed to a third-party, destroying any privileges. The work-product privilege also did not apply because the s were intentionally forwarded from the plaintiff s attorney to the expert. Furthermore, the court conducted an in camera review of the s and determined that they were relevant and must be produced. Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL (D.N.J. Jan. 31, 2007). During a discovery dispute in a patent infringement case, the plaintiff alleged that it inadvertently produced over 500 privileged s and moved for their return. During document review, the e- mails were identified as privileged, deleted from the Lotus Notes DVD, and submitted to the plaintiff s outside e-discovery vendor for final production processing. Because of the nature of the Lotus Notes application, the plaintiff claimed the privileged s unknowingly remained in a larger subfolder which the vendor processed and were ultimately produced to the defendant. In an earlier decision on this matter, the magistrate judge ordered that the privileged documents be returned because the plaintiff had not waived any privilege. The magistrate reasoned that the privileged s were embedded in metadata and that the privileged information was not apparent on the face of the documents. Therefore, the magistrate found that the defendant should have reasonably known that the retrieved s were not intended for disclosure. The defendant 290

291 objected to the magistrate s ruling and appealed to the district court judge. The district court judge reviewed the magistrate s decision de novo and found that the magistrate based his conclusion on a misunderstanding of fact, because the magistrate ruled that the plaintiff was unable to detect the error before production. However, in its briefings before the district judge, the plaintiff admitted that the inadvertent production of privileged documents was, in fact, apparent on the face of the documents because they had been Bates numbered and stamped as confidential. Since the magistrate based his decision upon a critical misunderstanding of this fact, the district court judge remanded the case to the magistrate for a reassessment of whether the plaintiff preserved the privilege and was thus entitled to their return. In addition, the district judge evaluated whether the plaintiff waived its privilege by producing 37 non-lotus Notes documents that were marked as unreadable during document review. Affirming the magistrate s ruling that privilege had been waived, the court stated turning over unintelligible or unreadable documents to an adversary evidences a lack of reasonable precaution. Gibson v. Ford Motor Co., 2007 WL (N.D. Ga. Jan. 4, 2007). In a product liability case, the plaintiff motioned the court to compel the defendant to produce a copy of its litigation hold notice as part of discovery. The litigation hold notice had a list of the documents the defendant wanted its employees to preserve for the pending litigation. The court ordered the document did not have to be produced to the plaintiff since it was closely related to attorney-work product material. The court noted that litigation holds are often over inclusive and the documents on the notice often do not bear any relevance to the actual litigation. The court also cautioned that compelled production of this notice would encourage other companies from not issuing litigation hold notices under fear of possible disclosure and adverse consequences. Thyroff v. Nationwide Mutual Ins. Co., 460 F.3d 400 (2d Cir. 2006). A former insurance agent appealed the dismissal of his claims for conversion of electronic data contained in personal software and computer files retained by his former insurance company. The defendant supplied the plaintiff with computer equipment including hardware and software for operating an insurance business but confiscated the equipment when the defendant terminated the business agreement. The computer hard drives contained several software programs bought and installed by the plaintiff including the plaintiff s personal information for his client and business contacts. The plaintiff and his employees gathered the information and entered it into the system without input from the insurance company. The defendant refused to return the electronic data claiming client lists and any personal information on the computer hardware was now property of the defendant since it was stored on company equipment. The plaintiff sued, claiming the electronic data contained on the computer was personal property and the defendant was liable under a theory of conversion. The defendant argued electronic data cannot be converted since it is an intangible asset and therefore dismissal was proper. In its holding, the court examined whether electronic data is tangible property capable of conversion. It compared such information to stocks and bonds which are not tangible unless a value is assigned to them by the holder. The court also noted, in dicta, computers are much like file cabinets and an employer or principal could not expect to keep an employee s personal files contained in the file cabinet when the employee leaves the company. In the end however, the court refused to rule on the matter and remanded the question of whether electronic data is property and capable of conversion back to the state court for clarification. Natl. Econ. Res. Assoc. v. Evans, 2006 WL (Mass. Super. Aug. 3, 2006). Plaintiff employer filed a motion to compel an employee s communications with his attorney that were created and received on a company-issued laptop while defendant was still employed with plaintiff. The s were deleted from the laptop shortly before defendant returned the laptop to plaintiff, but were later recovered from the hard drive by a computer forensics expert. The court 291

292 denied plaintiff s request because such documents were protected under the attorney-client privilege. Plaintiff argued that defendant employee waived his right to an attorney-client privilege because company policy stated that all from business and personal accounts would be monitored. Plaintiff further argued that although the privileged documents were deleted before recovery, defendant should have reasonably known that they were recoverable from his hard drive. The court ruled that defendant could not reasonably have understood that these attorney-client communications could be overheard. The court denied the motion because the privileged communications were viewed through a private address by employee not on the company s intranet, were not saved onto the laptop s hard drive and the defendant took adequate measures to ensure that his confidential information was not easily disclosed. Therefore, defendant did not waive his attorney-client privilege by purposely disclosing the information to plaintiff. Yancey v. Gen. Motors Corp., 2006 WL (N.D. Ohio July 20, 2006). In a disparate treatment employment claim, defendant requested that the court exclude certain employee s hard drives and s from the definition of documents as it related to a magistrate s discovery order. Additionally, the defendant argued that although production of the hard drives may generate some relevant documents, a large amount of data on the hard drive was irrelevant and likely to be barred under certain privileges. In refusing to exclude the terms from the definition of discovery documents, the court agreed with plaintiffs that the term encompassed computer hardware, software, s and computer forensics. Further, the court decided that to mitigate any possible disclosure of privileged information, the defendant must produce a confidentiality log of all possible documents from the hard drive. Lastly, since the removal of the hard drives is not an undue expense for a large corporation such as GM, the court ordered that they alone bear the costs of production to plaintiff. Williams v. Sprint/United Mgmt. Co., 2006 WL (D. Kan. July 1, 2006). The court conducted an in camera review of 65 documents inadvertently disclosed by the defendant to the plaintiffs. The court found the documents -- spreadsheets containing statistical information -- were created at the request of the defendant s attorneys for the purpose of obtaining legal advice, and were protected by attorney-client privilege. In reaching its conclusion, the court considered several s establishing the documents had been ed directly to the defendant s counsel. In ruling the privilege had not been waived by the defendant s inadvertent disclosure, the court analyzed five factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of discovery; (4) the extent of disclosure; and (5) the overriding issue of fairness. To prevent inadvertent disclosure, the defendant converted the documents into TIFF images, allowed attorneys to review them on a computer screen, and implemented document production software to label privileged documents for inclusion within the privilege log. Citing the Advisory Committee s comments to the proposed amendments to FRCP Rule 26(f), the court considered the added volume, expense and time required to sift through electronically stored information in determining that the defendant s efforts to prevent disclosure were reasonable. In addition, since the defendant had immediately taken steps to secure the return of the spreadsheets after learning the documents had been inadvertently disclosed, the court ruled the privilege not waived and ordered the documents be returned to the defendant. In re: Vioxx Prods. Liab. Litig., 2006 WL (5th Cir. May 26, 2006). In a product liability litigation, the defendant sought interlocutory appeal and a writ of mandamus of the district court s ruling regarding the defendant s attorney-client privilege claims. Out of more than 2,000,000 documents produced in response to the plaintiff s discovery request, the defendant withheld approximately 30,000, claiming attorney-client privilege. After conducting an in camera, documentby-document, review of the 30,000 documents, the district court determined only 491 documents 292

293 were privileged and ordered the remainder be produced to the plaintiff. On appeal, the court only examined the trial court s review process, rather than the merit of the privilege claim on any single document. The Fifth Circuit found the district court judge s efforts commendable, but inadequate, and determined that a continuation of the current review process without modification would constitute an abuse of discretion. The Fifth Circuit granted the defendant s motion for a reexamination of 2,000 documents and instructed the defendant to supplement the privilege log and offer assistance in easing the burden of review on the district court judge. The Fifth Circuit allowed the district court discretion in determining whether further review of the documents would be necessary. Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2006 WL (W.D. Tex. May 31, 2006). In a patent infringement action, the plaintiff sought an order compelling the defendant s witness to testify about communications in relation to an inadvertently produced during discovery. Filing a counter motion, the defendant claimed that the was protected by attorney-client privilege and demanded return of the document. The court denied the defendant s counter motion, finding the privilege had been waived after the defendant had repeatedly failed to take steps in securing the return of the after first learning that the document had been inadvertently disclosed. Noting that the plaintiff had deposed one of the defendant s witnesses about the substance of the without objection from the defendant in July of 2004, the court chided the defendant s counsel for failing to assert a claim of attorney-client privilege at the deposition. The court observed that the substance of the should have placed the defendant on notice that it had produced a document containing privileged communications seeking legal advice. The contained attachments specifically labeled Confidential-Attorney s Eyes Only and was addressed to a law firm. Not until February of 2005, when the was introduced again at another deposition did the defendant assert attorney-client privilege. Still, the defendant waited three months to petition the court for return of the document and only after the plaintiff refused to return the and brought a motion to compel further testimony. The court determined that the plaintiff was entitled to keep the and demand further testimony in relation to it. Kaufman v. SunGard Inv. Sys., 2006 WL (D.N.J. May 10, 2006). In a case involving breach of contract claims, the court affirmed the magistrate judge s order declaring that certain e- mail exchanges between the plaintiffs and their counsel were discoverable and not protected by attorney-client privilege. Following plaintiff s termination of employment, the defendant recovered deleted exchanges on two company owned laptops. The court found that the plaintiffs waived privilege claims as to s sent prior to the defendant s acquisition of the plaintiffs business because the plaintiffs had not taken steps to protect or segregate those s from the defendant s systems. As to other s sent and received after the acquisition, the court found that because the plaintiffs had received notice of the defendant s monitoring policy, the plaintiffs waived any privilege claims by utilizing the defendant s system to send and receive those communications. Curto v. Medical World Communications, Inc., 2006 WL (E.D.N.Y. May 15, 2006). In an employment action, the defendants objected to a finding that the plaintiff had not waived her right to assert attorney-client and work product protection claims concerning s and data contained on two laptops owned by the plaintiff s former employer. Specifically, the defendants claimed a magistrate judge erred in considering whether the employer properly enforced its computer usage policy. Before returning the laptops to her employer, the plaintiff deleted all personal files, including protected communications. Two years later, the employer s computer forensic expert restored some deleted files and s. The employer produced the recovered data to the plaintiff s counsel, who claimed many of these documents were privileged. Agreeing 293

294 with the magistrate that the plaintiff reasonably believed the documents and s were confidential, the court noted, Plaintiff's laptops were not connected to [the employer's] computer server and were not located in [the employer's] offices; thus, [the employer] was not able to monitor Plaintiff's activity on her home-based laptops or intercept her s at any time. Henry v. IAC/Interactive Group, 2006 WL (W.D. Wash. Feb. 14, 2006). In a case involving employment discrimination allegations and breach of contract counterclaims, the defendants asserted they first learned (months into the discovery process) the plaintiff possessed tens of thousands of company documents, a company-issued laptop, and a company account. The defendants promptly demanded the return of this data, any copies of the data, and written declarations regarding use of the data. Ultimately, the plaintiff turned over several computers, documents, computer disks and CDs to a neutral computer forensic expert. Nevertheless, the defendants believed the plaintiff s counsel retained copies of the data and sought a preliminary injunction. Granting the injunction, the court stated, [a]llowing [the] plaintiff and her counsel to continue to have access to the documents increases the risk that they will review privileged documents. Any documents to which [the] plaintiff is entitled can be produced through the normal channels of discovery. The court ordered the plaintiff to return all of the defendant s property immediately, and indicated that the plaintiff s attorney-client privilege documents contained on the computer media could be removed by a neutral computer forensic expert at the plaintiff s expense. The expert was to supply the defendants with a log identifying any documents withheld as privileged. Atronic Int l, GMBH v. SAI Semispecialists of Am., Inc., 232 F.R.D. 160 (E.D.N.Y. 2005). During discovery in a breach of contract action, the plaintiff inadvertently produced two s from the plaintiff s employee to the plaintiff s international counsel. The plaintiff again inadvertently reproduced the s over a year later as deposition exhibits. After discovering the inadvertent productions, the plaintiff sought an order directing the defendant to return the documents and to refrain from using any information contained in the documents. A magistrate judge determined the plaintiff had waived its privilege claim as a result of the inadvertent productions. The plaintiff objected to the magistrate s determination, claiming New York state law does not recognize attorney-client privilege waiver for inadvertent document production. Rejecting this argument, the district court held inadvertent disclosure could waive the attorney-client information depending on the circumstances in the case. United States v. Kaufman, 2005 WL (D.Kan. Aug. 25, 2005). In a case involving an indictment for health care fraud, civil rights violations and other charges, the defendants sought dismissal of the indictment or, alternatively, recusal of the prosecutors based on their alleged knowledge of privileged material. The government, who had seized the defendants computer and searched it pursuant to a valid warrant, admitted some potentially privileged letters between the defendants and its counsel were present on the computer. The government claimed the computer search was performed by a computer forensic lab. After the lab transferred the data from the computer hard drive to a CD, a Department of Justice attorney not associated with the prosecution, created a DVD of the computer's contents with potentially privileged materials redacted. The attorney also printed hard copies of the potentially privileged material and turned them over to defense counsel. Despite these precautions, the defendants argued the government possessed un-redacted copies of the DVD, providing it with unfettered access to the potentially privileged information. The court determined that even if some of those documents were privileged, and even if the prosecutors had read some of them, neither the draconian remedy of dismissal, nor the slightly less drastic remedy of recusing the prosecutors, would be appropriate under the facts of 294

295 this case. The court also set forth a detailed protocol for the defendants to review the evidence for privileged material. People v. Jiang, 31 Cal.Rptr.3d 227 (Cal. Ct. App. 2005), withdrawn, 33 Cal.Rptr.3d 184 (Cal. Ct. App. 2005). In an appeal from a rape conviction, the defendant argued, inter alia, that passwordprotected documents contained on his employer-issued laptop in a folder marked Attorney were protected by the attorney-client privilege. The trial court had previously determined these documents were not subject to the attorney-client privilege because the defendant had no reasonable expectation of privacy in documents on an employer-issued laptop computer. On appeal, the state argued the defendant did not have a reasonable expectation of privacy based on the terms of an employment agreement in which the defendant acknowledged he had no expectation of privacy for any company-owned property. The appellate court reversed the trial court s holding and found the defendant made substantial efforts to protect the documents from disclosure by password-protecting them and segregating them in a clearly marked and designated folder. The appellate court further declared the prosecution failed to prove the documents were not confidential and noted the employment agreement did not prevent the defendant from using the laptop for personal use. Barton v. United States, 2005 WL (9th Cir. June 9, 2005). In a suit relating to an antidepressant drug, the trial court denied the plaintiff's writ of mandamus to prevent disclosure of answers to a law firm questionnaire completed online by prospective clients. The trial court s decision rested on a disclaimer on the bottom of the questionnaire that stated filling out the questionnaire "does not constitute a request for legal advice and that I am not forming an attorney client relationship by submitting this information." On appeal, the court reversed the trial court s decision and determined the questionnaire answers were submitted in the course of prospective attorney-client relationship and were thus confidential and protected by the attorney-client privilege. In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005). In a bankruptcy proceeding, company officers used the company system to communicate with their personal attorney. During discovery, the officers refused to produce these s, withholding on the grounds of the attorney-client, work product, and joint defense privileges. The employer s trustee moved to compel production, claiming the officers waived any privileges with regard to the s by using the corporate system to draft them. In analyzing whether the attorney-client privilege applied, the court weighed the following four factors: (1) whether his employer maintains policy banning personal or other objectionable use; (2) whether employer monitors use of employee's computer or ; (3) whether third parties have right of access to employee's computer or ; and (4) whether employer notified employee, or whether employee was aware, of any use and monitoring policies. Noting that [s]ending a message over the [company s] system was like placing a copy of that message in the company files, the court nevertheless found the attorney-client privilege was not waived as a matter of law, because the company s policies regarding use and monitoring were unclear. The court also found the work product privilege was not waived because the parties did not distinguish between opinion and non-opinion work product. The court further noted that the officers may have reasonably believed the s would remain confidential. In re OM Group Sec. Litig., 226 F.R.D. 579 (N.D. Ohio 2005). In a shareholder litigation suit, the plaintiff sought to compel production of s and spreadsheets listed on a privilege log relating to a committee s investigation of corporate inventory problems. The defendants asserted that some of the s and spreadsheets were protected by the work-product doctrine and other s were protected by the attorney-client privilege. The court declined to find any of the documents protected by the work-product doctrine, finding they were not prepared in anticipation of litigation. Addressing the attorney-client privilege documents, the court found the defendants had waived the 295

296 attorney-client privilege only to the documents prepared on or before the date on which the committee presented its findings relating to the ongoing investigation. Banks v. United States, 2005 WL (W.D.Wash. Mar. 22, 2005). The plaintiff filed a medical malpractice suit relating to care received at a veteran s hospital. During discovery, the plaintiff obtained a series of privileged s attached to various discoverable documents. The defendant argued that the s were privileged as attorney work product, had been inadvertently disclosed, and should be returned to the defendant and disallowed at trial. In response, the plaintiff contended that even if the s were work product, the defendant waived protection of the privilege by producing the s. The court adopted the Ninth Circuit s five factor test relating to privilege waiver, which weighed the following factors: "(1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the 'overriding issue of fairness." Applying the test, the court noted neither party presented evidence of precautionary measures taken to prevent inadvertent disclosure. The court also noted the defendant timely attempted to rectify the error and that the extent of the disclosure was limited. Based on its findings, the court determined the privilege was not waived, ordered the plaintiff to return the s, and declared the s would not be admissible at trial. Collaboration Properties, Inc. v. Polycom, Inc., 2224 F.R.D. 473 (N.D. Cal. 2004). In a patent infringement case, the plaintiff, inter alia, sought to compel production of electronic documents and s. The defendant claimed the disputed documents fell within the attorney-client privilege since they were exchanged between the defendant s engineers and former defense counsel. In response, the plaintiff argued the defendant had waived the privilege because it was asserting an advice-of-counsel defense to charges of willfulness and because it sent the documents to its current counsel. The defendant maintained that the attorney-client privilege still existed because its counsel never opened the attachments containing the privileged documents. Denying its motion to compel, the court found the plaintiff did not present sufficient evidence to refute the defendant s argument. The plaintiff also disputed 58 s identified by the defendant as privileged. These s were exchanged between non-attorney employees but contained a forwarded exchange with an attorney. Although the defendants had produced redacted copies of the s, the plaintiffs argued the redactions were overbroad because they blocked out information about the author and the recipient of the s. The court agreed, ordering the defendant to show the plaintiff unredacted copies of the s in order to discuss the scope of privilege. This disclosure conference, the court added, would not waive any existing attorney-client privilege. Judicial Watch, Inc. v. United States Dep t. of Justice, 337 F.Supp.2d 183 (D.D.C. 2004), rev d, 432 F.3d 366 (D.C. Cir. 2005). The defendants filed a motion for reconsideration of the court s earlier ruling relating to the production of nine messages for which they had asserted the attorney work-product privilege. Pursuant to the Freedom of Information Act (FOIA), the court had previously required the defendants to provide the plaintiff with redacted copies of the privileged e- mails. In its motion for reconsideration, the defendants argued that the FOIA segregability requirement mandating production of any reasonably segregable portion of a record did not apply and, as a result, the s did not need to be produced. The court rejected this argument, holding that the FOIA segregability requirement applies to all documents, including s. Emphasizing that the defendants made no effort to separate factual and privileged material, the court denied the defendants motion and ordered production of the redacted copies. On appeal, the court determined the entire contents of the s were prepared in anticipation of litigation, protected by the attorney work-product doctrine, and exempt from disclosure. 296

297 Cellco Partnership v. Nextel Communication, Inc., 2004 WL (S.D.N.Y. July 9, 2004). Responding to a motion to compel the production of documents in a case arising from a trademark disagreement, the defendant withheld production of eight s. The defendant claimed that seven of the s were protected by the attorney-client privilege doctrine. Six of these s contained advice given to the defendant s employee from the defendant s in-house counsel, and the seventh contained legal advice from the defendant s in-house counsel to one of the defendant s employees as well as to an advertising agency. Granting the plaintiff s motion to compel the 7 s, the court determined that the s were not attorney client privileged because the agency failed to demonstrate that it intended for the in-house counsel to act as its attorney. The defendant also disputed production of an from one of its employees to the agency, claiming it was protected under the work-product doctrine. The court determined that this was protected because the advice contained in the was given in anticipation of a previous lawsuit involving the defendant. Portis v. City of Chicago, 2004 WL (N.D. Ill. July 7, 2004). In response to a federal civil rights class action lawsuit, the city moved to compel discovery of a document database prepared by the plaintiffs attorneys. The city had previously rejected the plaintiff s proposal to work jointly on assembling the costly and time-consuming database containing arrest reports deemed relevant to the lawsuit. In response to the city s motion, the plaintiffs, who had spent more than $90,000 to compile the database, claimed that the database was protected as attorney work product. Although the court agreed that the database contained attorney work product, it determined the database was neither selective nor revealing enough to constitute opinion work product. The court further declared the city had a substantial need for the information and the amount of time and money the City would have to expend to compile a similar database from scratch warrants a finding of undue hardship. As such, the court granted the city s motion to compel the database as long as the city reimbursed the plaintiffs for half of the costs associated with compiling the database. See also Portis v. City of Chicago, 347 F.Supp.2d 573 (N.D. Ill. 2004) (The court calculated database expenses based on the number of hours spent creating the database multiplied by hourly billing rates). Hollingsworth v. Time Warner Cable, 812 N.E.2d 976 (Ohio App. 2004). In an employment discrimination lawsuit, a former employee alleged that she was wrongfully discharged and sought unemployment benefits. In response to the employee s request for benefits, the defendant produced an at the benefits hearing. The , which was from the company s human resources vice president to legal counsel, stated the reasons for the employee s termination. After the was produced at the hearing, the employee requested production of any other related documents for use in her wrongful discharge claim. Stating that the was privileged and had been produced unintentionally, the defendant moved for a protective order. The trial court granted the protective order and instructed the employee to return the . The appellate court reversed stating that the company waived any privilege claims when it voluntarily divulged the . In re Lernout & Hauspie Sec. Litig., 2004 WL (D. Mass. May 27, 2004). In a securities fraud action, an accounting firm responded to the plaintiff s document production request by producing eleven boxes of documents related to issues in the suit. The boxes contained several e- mails sent to the firm s attorney, including one that disclosed an anonymous phone call implicating misconduct by the accounting firm. The accounting firm s counsel insisted that the e- mail had been disclosed accidentally and that it should be protected under both the attorney-client privilege and the work-product privilege. Rejecting this argument, the court determined that the accounting firm waived any attorney-client privilege and declared that the work product doctrine did not protect disclosure because the was prepared during the ordinary course of business 297

298 rather than in anticipation of litigation. The court ordered production of 15 s withheld by the accounting firm based on privilege. In re Spring Ford Indus., Inc., 2004 WL (Bankr. E.D. Pa. May 20, 2004). In a commercial rent collection dispute, the debtor produced an from its attorney regarding proposed amendments to the lease contract. The debtor s counsel also indicated that it had other related s but that they were subject to the attorney-client privilege. In response, the creditor argued that the debtor should be compelled to produce the s because the privilege had been waived when the debtor produced the original from its attorney. Determining that the privilege had not been waived, the court declared that there was no evidence that the document was created in the course of rendering legal advice [a]t best, the Disclosed is educational in nature. The court further stated that even had the disclosed been privileged, the privilege would not necessarily be waived as to subsequent s. United States v. Segal, 313 F.Supp.2d 774 (N.D.Ill. 2004). In a criminal investigation, the government seized over 200 boxes of documents and several personal computers and back-up tapes belonging to the defendants. The defendants moved for the return of all seized attorneyclient privileged communications and to bar the government from using these communications for any purpose. In addition, the defendants claimed the government failed to adhere to Department of Justice guidelines, which required a meaningful screening process to insure that it did not review privileged electronic communications. Conversely, the government claimed it endeavored to create an efficient document review system by using search programs to identify documents relating to particular search terms rather than browsing all of the hard drives in its possession. In ruling, the court stated that [t]he government s sloppy handling of Defendants electronic information should not be condoned, but it is not of sufficient magnitude to violate Defendants due process rights and thus warrant the strong medicine of evidence suppression. Although it refused to authorize the suppression of derivative evidence, the court ordered the government not to review any of the documents contained in the defendants privilege log or to introduce any of those documents at trial without a court determination that those documents were not privileged. Baptiste v. Cushman & Wakefield, Inc., 2004 WL (S.D.N.Y. Feb. 20, 2004). In an employment discrimination lawsuit, the court addressed the issue of whether an was protected by the attorney-client privilege. The contained advice from the defendant s counsel regarding legal matters concerning the plaintiff, one of the defendant s employees at the time. The plaintiff, who claimed that a printed copy of the was left anonymously on her desk, argued that the was not protected by the attorney-client privilege because it was not labeled as protected, was not authored or circulated to attorneys, and did not refer to or contain legal advice. The plaintiff further argued that in the event the was privileged, it was inadvertently produced, thus waiving any of the defendant s attorney-client privilege claims. The court determined that the first four paragraphs of the were protected by the attorney-client privilege because the was clearly conveying information and advice given by outside counsel. However, the court concluded that the final paragraph of the was not protected because it contained the defendant s own impressions and frustrations about the plaintiff s job performance. Finally, the court decided that the defendant did not waive the attorney-client privilege with respect to the first four paragraphs of the . In response to the plaintiff s requests, the defendant did not produce the and the defendant further identified the as privileged attorney-client information in the privilege log submitted to the plaintiff s counsel. As such, the court ordered that the original should be returned to the defendant and reproduced in a redacted form to the plaintiff. 298

299 United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003). The defendant prepared an e- mail in response to her attorneys' requests for factual information in the furtherance of their legal representation. A day later, the defendant accessed the and forwarded it to her daughter. The court held that the was protected work product and that the defendant did not waive its immunity by forwarding the document to her daughter. United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003). The government in a bank fraud, wire fraud, and securities fraud case issued grand jury subpoenas to several executives and topemployees in the company, Adelphia Communications Corporation, being investigated. Adelphia produced copies of 26 computer hard drives in response to the subpoenas. The Assistant United States Attorneys assigned to the matter directed their staff to install the hard drives in certain computer terminals belonging to the United States Attorney's Office ( USAO ) so that the data could be reviewed. The staff informed was informed that the hard drives were evidence and should be installed in such a way as to prevent additions to or deletions from those drives. Shortly thereafter, the computer consultant hired by defense counsel was permitted to make copies of the hard drives in question at the main USAO office. In the course of reviewing the images, defense counsel's computer expert determined that several USAO confidential files associated with the case at issue as well as other pending cases were produced during the imaging. The defendants argued that the Government waived its work product privilege when it voluntarily permitted defense counsel to copy the hard drives. The Government contended that disclosure of USAO files was inadvertent and therefore did not constitute waiver of the privilege. The court used a four part balancing test to determine that no waiver of privilege had occurred. RLS v. United Bank of Kuwait, 2003 WL (S.D.N.Y. Mar. 26, 2003). In a contract dispute arising from the defendant s alleged failure to pay the plaintiff commissions due under the terms of written consulting agreements, the court concluded that the defendant did not meet its burden of demonstrating that two s were subject to privilege protection under the common interest rule. Murphy Oil USA v. Fluor Daniel, No. 2:99-cv (E.D. La. Dec. 3, 2002). This Order follows the court s decision in Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL (E.D. La. Feb. 19, 2002) ordering the defendant to produce relevant communications archived on backup tapes. In this motion to compel before the court, the plaintiff sought production of a particular and argued that the defendant waived the attorney-client privilege by voluntarily producing the contents of an . Two copies of the in question existed on the defendant s backup tapes: (1) the attached to a message from the mail system administrator stating that the attached was not deliverable due to an error in the mail address and (2) a copy of the same sent to the correct address. The defendant produced a privilege log identifying the subject as an attorney-client communication, but at the same time inadvertently produced the administrator and attachment. The court held that this inadvertent disclosure waived the attorney-client privilege and granted the plaintiff s motion to compel. espeed, Inc. v. Chicago Board of Trade, 2002 WL (S.D.N.Y. May 1, 2002). Cantor Fitzgerald, a third party and partial owner of the plaintiff, asserted the attorney-client privilege with respect to a series of s and attachments addressing a patent purchase negotiation. These e- mails and attachments were sent by an outside attorney to an employee of Cantor Fitzgerald. The court examined the s and attachments in camera and ordered production finding that the messages and documents did not contain client confidences and were not privileged. Harris v. WHMC, Inc., 2002 WL (Tx. Ct. App. Aug. 8, 2002). In a medical malpractice suit, the plaintiff appealed the trial court s exclusion from evidence certain correspondence based on privilege. The trial court ruled that the plaintiff could use the s at trial for impeachment purposes, but the s themselves would not be admitted. The appellate court 299

300 concluded that even if the trial court erred in excluding the s, it was harmless error and did not cause an improper judgment. Hambarian v. C.I.R., 118 T.C. 35 (U.S. Tax Ct. June 13, 2002). For use in connection with a criminal tax proceeding, the defendants attorney created searchable, electronic databases containing documents turned over by the Prosecutor during discovery. The Respondent, in the civil tax proceeding at bar, sought a motion to compel discovery of these electronic document databases from the Petitioners/defendants. The court stated that As the Petitioner failed to make the requisite showing of how the disclosure of the documents selected would reveal the defense attorney's mental impressions of the case, the requested documents and computerized electronic media are not protected by the work product doctrine. City of Reno v. Reno Police Protective Assoc., 59 P.3d 1212 (Nev. 2002). The court overturned the Employee Relations Board s decision that documents sent by cannot be considered privileged. The court stated that [C]ourts have generally looked to the content and recipients of the to determine if the is protected and held that documents transmitted by are protected by the attorney-client privilege. Koen v. Powell, 212 F.R.D. 283 (E.D. Pa. 2002). In a legal malpractice suit, the court held that the attorney-client privilege and work product doctrine did not shield the defendants from turning over s relating to the threatened malpractice suit. Bertsch v. Duemeland, 639 N.W.2d 455 (N.D. 2002). Bertsch v. Duemeland, 639 N.W.2d 455 (N.D. 2002). In an action alleging tortious interference with a business relationship, the appellate court affirmed a lower court s denial of the plaintiff's motion to compel discovery of data from some of the defendant's computers. Specifically, the court denied the plaintiff access to computers purchased by the defendant after the transaction that gave rise to the litigation. The court reasoned that the resulting data could not be relevant to the case, and that granting access would not lead to relevant information and could result in disclosure of privileged and confidential information. The court had previously permitted e-discovery of the defendant s computer that was owned at the time of the alleged torts. United States v. Sungard Data Systems, 173 F. Supp.2d 20 (D.D.C. 2001). In an antitrust action, the court set forth specific confidentiality requirements, including a precise method for designating confidential electronic documents. Long v. Anderson University, 204 F.R.D. 129 (S.D.Ind. Oct. 30, 2001). The court found that the attorney-client privilege applied to electronic mail sent from a University human resources director to the dean of students regarding a conversation with counsel and his legal advice in a Civil Rights action against the University. Wesley College v. Pitts, 1997 WL (D. Del. Aug. 11, 1997). The court found that the defendant waived its work-product privilege when the was distributed to several third parties. State of Minnesota v. Phillip Morris, 1995 WL (Minn. Ct. App. Dec. 26, 1995). Petitioners seek relief from a trial court s discovery order claiming that the material is attorney work product. The trial court made specific findings that (a) the computerized databases include fields containing objective information, (b) release of the specified information will not reveal the impressions, opinions, or theories of counsel, and (c) respondents have met the standards for disclosure. Both the trial court and the court of appeals found unpersuasive the Petitioners' argument that the mere selection of documents for inclusion in the database would reveal attorney strategies. Scovish v. Upjohn Co., 1995 WL (Conn. Super. Ct. Nov. 22, 1995). The court found that database was within attorney work-product, but that the plaintiff had substantial need of the information in the database and undue hardship would result if it was not produced. The court 300

301 ordered the defendant to produce the database after removing any portions that contain subjective thoughts and opinions. Ciba-Geigy Corp. v. Sandoz, Ltd., 916 F. Supp. 404 (D.N.J. 1995). The defendants produced all documents from database without conducting a privilege review. The court held that privilege is waived where the disclosure is a result of gross negligence. United States v. Keystone Sanitation Co., 885 F. Supp. 672 (M.D. Pa. 1994). In complying with the court s discovery order, the defendant inadvertently disclosed messages that contained potentially confidential communications. This inadvertent disclosure waived any attorney-client privilege that may have protected portions of the . IBM v. Comdisco, Inc., 1992 WL (Del. Super. Ct. Mar. 11, 1992). The court allowed production of a portion of an message claimed to be privileged because a portion of the e- mail message was intended to be disclosed to persons outside the attorney/client privilege. Because it relayed legal advice from IBM s counsel, the other portion of the was found to be privileged. Burroughs v. Barr Lab., Inc., 143 F.R.D. 611 (E.D.N.C. 1992), vacated in part on other grounds 40 F.3d 1223 (Fed. Cir. 1994). The court held that the attorney work product privilege applied to printed results of computerized database searches. Indiana Coal Council v. Nat l Trust for Historic Preservation, 118 F.R.D. 264 (D. D.C. 1988). The court held that the work product doctrine prevented the plaintiff from gaining access to the defendant s legal research resources and findings conducted through a computer assisted legal research system. Hoffman v. United Telecomms., Inc., 117 F.R.D. 436 (D. Kan. 1987). In an interrogatory, the plaintiff requested specific information concerning a computer file containing information regarding possible employment discrimination. The court denied requesting party s motion to compel finding that since the data would reveal defendant s discovery plan, the information was protected by the work-product doctrine. Transamerican Computer Co. v. IBM, 573 F.2d 646 (9th Cir. 1978). The court was more lenient regarding waiver of privilege where the party was required to produce larger amounts of data and where they actually performed some degree of privilege review. Experts Ceglia v. Zuckerberg, 2012 WL (W.D.N.Y. April 19, 2012). In this breach of contract action concerning ownership of Facebook, the plaintiff asserted that an at-issue was inadvertently produced by a technology expert who mistakenly copied a privileged attached to a document he was hired to recover. Following the inadvertent production, the recipient consulting firm disseminated the in its native format to all parties in the action. More than two months later, the plaintiff claimed that the was inadvertently produced and motioned for its return or destruction. Applying Fed. R. Evid. 502, the court considered whether the plaintiff took reasonable steps to prevent disclosure and whether the privilege holder took reasonable steps to remedy the error. In its analysis, the court found that the plaintiff failed to take the requisite steps to prevent disclosure when his counsel failed to personally supervise the expert s recovery and production efforts. Furthermore, the court found that the substantial lapse in time between the dissemination of the and the motion for its destruction did not suggest that the plaintiff took reasonable steps to rectify the disclosure. Therefore, the court found that the plaintiff effectively waived any privilege attached to the -in-question and denied the plaintiff s motion. 301

302 Sara Lee Corp. v. Kraft Foods Inc., 2011 WL (N.D. Ill. Apr. 1, 2011). In this false advertising litigation, the plaintiff sought to compel deposition testimony and disclosure of documents from the defendants' expert.responding, the defendants argued that pursuant to their choice-of-law agreement, the plaintiff sought materials beyond the scope of expert discovery. Applying amended Fed.R.Civ.P. 26 relating to expert disclosures and discovery, the court determined the communications at issue did not contain facts, data or assumptions provided by the party's attorney and therefore did not fall under the testifying expert rubric. Further, the court found the materials received work product protection as they were communications between the expert and defense counsel. Denying the plaintiff's motion, the court also noted the plaintiff was able to obtain the information by other means and had already retained its own expert. Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 2010 WL (D.Conn. June 1, 2010). In this business litigation, the plaintiff requested forensic imaging of the defendants' computers and electronic media, sought preservation and production of evidence, and solicited sanctions. The plaintiff presented evidence demonstrating that the defendants' disposal of a computer occurred after the duty to preserve arose. Citing Ameriwood Industries, Inc. v. Liberman, the court found a "sufficient nexus" existed between the plaintiff's claims and the need for forensic imaging. The court disregarded the defendants' argument a neutral expert was unnecessary, determining the defendants' hiring of an expert suggested an "end run" in the defendants' efforts to deny discovery requested by the plaintiff. In assigning costs for the imaging work, the court noted that the defendants' "apparent deceit, obstreperousness and destruction of relevant information" necessitated the retention of the forensic expert and ordered the defendants to bear 80 percent of the associated costs. Finally, the court awarded the plaintiff attorneys' fees and costs, finding the defendants "wasted the Plaintiff and the Court's resources." Adhi v. Twp. of W. Pikeland, 2010 WL (E.D.Pa. Mar. 16, 2010). In this property and zoning litigation, the defendant sought enforcement of a pre-existing court order and production of additional s. The plaintiff contended that if additional s ever existed, they were deleted in the good faith ordinary course of business and therefore could not be produced. In response, the defendant argued that the mere deletion of an does not make it lost forever and requested retrieval of the ESI through the use of an e-discovery specialist. Relying on the plaintiff s failure to deny that additional s may have existed, the court ordered the plaintiff to allow the defendant s e-discovery expert to inspect the plaintiff s computers for responsive information. Additionally, because the court further concluded there was no substantial justification for the plaintiff s discovery failure, the defendant was entitled reasonable expenses associated with filing and attorney s fees as a sanction. Mintel Int l Group, Ltd. v. Neergheen, 2010 WL (N.D.Ill. Jan. 12, 2010). In this employment litigation, the plaintiff sought sanctions up to and including default judgment based on the defendant s alleged spoliation. The plaintiff argued that the defendant failed to preserve the hard drive of a company-issued laptop by using programs on the computer to destroy metadata and overwrite files. The defendant, whose use of the computer consisted of turning on the computer, accessing the Internet and allowing an automated defragmentation program to run, claimed his actions were not prohibited and did not result in the destruction of relevant evidence. Relying on expert testimony, the court found that any programs on the laptop that would have destroyed metadata, such as antivirus software, were not user initiated. The court held that the defendant s destruction of any evidence was unintentional, resulting from typical computer use rather than a pattern that is easily recognized by forensic experts as spoliation. (Emphasis in original.) Thus, the court found sanctions were not warranted and denied the plaintiff s motion. 302

303 G.K. Las Vegas L.P. v. Simon Prop. Group, Inc., 2009 WL (D. Nev. Nov. 30, 2009). In this business litigation, the defendants previously requested case dismissal and sanctions based on the plaintiffs' alleged spoliation of evidence. Due to the defendants' failure to demonstrate that electronic evidence was destroyed and no longer available, the motion was dismissed without prejudice. However, the court ordered a forensic examination of the plaintiffs' computer equipment by a court-appointed independent computer forensics expert. Upon learning of the defendants' ex parte communications with the independent expert during the imaging process, the plaintiffs moved to have the forensic examination order vacated and the spoliation motion modified to dismissal with prejudice. The defendants claimed that the expert was not court-appointed but was instead a "party retained independent expert." Finding the intent to enlist a court-appointed, independent expert blatantly clear in the record and subsequent agreement, the court determined the defendants "forfeited their opportunity to obtain an independent forensic examination" and granted the plaintiffs' motions. United States v. Haymond, 2009 WL (N.D. Okla. Sept. 16, 2009). In this criminal case, the defendant renewed his request for access to unlawful images allegedly contained on his computer that were seized by the government. The defendant argued the hard drive was "stripped" of metadata prior to the mirror image creation, which prevented him from preparing a forensic defense. The defendant also requested redacted copies of the images to support subpoenas to the Web sites where the images originated. Relying upon the defendant's expert's testimony that he was "99.99-percent sure" no metadata would be located, the court found no basis for the defendant's claim that metadata had been "stripped." The court further ordered the defendant to identify the images with embedded Web site information in advance of trial, at which point the government is to prepare redacted images for the defendant's use in conjunction with the subpoenas. Mintel Int'l Group, Ltd. v. Neergheen, 2009 WL (N.D.Ill. Apr. 17, 2009). In this ongoing misappropriation of trade secrets litigation, both parties offered testimony from qualified computer forensics and electronic discovery experts. The defendant sought exclusion of the plaintiff's expert from testifying, alleging the expert failed to meet the appropriate standards, and requested exclusion of evidence regarding spoliation allegations claiming the evidence was irrelevant and prejudicial. The plaintiff objected to the magistrate judge's order denying production of a mirror image from a third party. Granting the defendant's motion to exclude in part, the court ordered preclusion of the expert's legal conclusions regarding whether the defendant's conduct constituted spoliation, but otherwise allowed testimony. The court noted the expert must be able to technically explain the conclusion reached regarding whether the defendant used a "defrag" program and not simply speculate "to please the side that hired him." Turning to the spoliation issue, the court denied the defendant's motion, concluding the experts' views on whether evidence was deleted would be "extremely helpful given the complexity of the electronic evidence issues." Finally, the court upheld the magistrate judge's recommendation to deny production of the third party's mirror image given the magistrate judge's previous analysis of the conflicting expert testimony and evidence presented by the plaintiff. Mintel Int l Group, Ltd. v. Neergheen, 2009 WL (N.D.Ill. Feb. 3, 2009). In this trade secrets and computer fraud litigation, the plaintiff sought a reconsideration of the court s previous ruling denying the plaintiff s fifth request for a mirror image of a third party s computers. The plaintiff alleged the defendant illegally ed the plaintiff s documents to his personal account before leaving the company. The plaintiff filed this motion based upon newly discovered evidence from a forensic analysis of two USB drives produced by the defendant that contained proprietary documents belonging to the plaintiff. Two experts one each for the plaintiff and third party 303

304 analyzed the evidence and presented conflicting testimony regarding whether data was destroyed. In this battle of the experts, the court determined that the plaintiff did not establish that a wiping program was utilized given the testimony of the third party s expert, which provided a reasonable alternative. Based on the court s unwillingness to violate the privacy interests of the third party, the court denied the plaintiff s motion to reconsider. D Onofrio v. Sfx Sports Group, Inc., 2008 WL (D.D.C. Oct. 29, 2008). In this employment discrimination litigation, the defendants filed several motions, including a motion for leave to designate an expert to design a search protocol. Previously, the court stated the lawyers should rely on IT professionals to create a protocol that was easily understood. After the defendants proposed a highly technical search protocol, the court decided to create one of its own that included: search parameters and locations, time limits and a requirement that the defendants must restore newly discovered ESI. Am. Boat Co., Inc. v. Unknown Sunken Barge, 2008 WL (E.D.Mo. April 22, 2008). In this negligence action, the plaintiffs moved to reopen the time to file an appeal claiming the plaintiffs attorney did not receive the electronic notice of the court order. The defendants computer forensic expert imaged the computer hard drive belonging to the plaintiffs counsel and found no evidence the notice had ever been on the computer system. Based on his investigation, the expert opined the notice was successfully sent, but was removed from the server after the attorney s secretary accessed the from a remote computer using the internet Post Office Protocol. The court found that proof an is not in a recipient s possession is insufficient to rebut the presumption that a generally reliable, properly dispatched reached its intended recipient. Auto Club Family Ins. Co. v. Ahner, 2007 WL (E.D.La. Aug. 29, 2007). In this insurance dispute, the defendants subpoenaed evidence from a third party, Rimkus Consulting Group, which investigated their home for property damage following Hurricane Katrina. Rimkus motioned the court to quash the subpoena and instead issue a protective order and argued for production in paper to prevent any compromise in the authenticity or integrity of its engineering reports. The court denied the motion as the files were stored electronically in the ordinary course of business and the defendant requested an electronic production. The court further noted Rimkus failed to provide evidence sufficient to meet its burden that the electronically stored information was not reasonably accessible due to undue burden or cost. While recognizing Rimkus as a non-party entitled them to protection from undue burden and expense, the court noted Rimkus must to show that the requested electronic information would be unduly burdensome to produce. In applying Fed. R. Civ. P. 45(d)(1)(D), the court refused to find the mere statement of an attorney sufficient evidence to prove burden. Roberts v. Canadian Pacific R.R. Ltd., 2007 WL (D. Minn. Jan. 11, 2007). In a claim relating to a train derailment accident, the plaintiff filed a motion to compel the production of an expert report from the defendant. During the state court proceeding, one of the defendant s witnesses admitted to deleting a damaging . Subsequent to that admission, the defendant hired a computer forensics expert to determine if any had been destroyed and lost as evidence. The plaintiff now files for production of the expert s report in this federal action. The defendant argues that federal law will preempt the plaintiff s claim and, therefore, any spoliated evidence is irrelevant to the plaintiff s case. However, the court disagreed with the defendant s argument that there is no harm, no foul by the destroyed . The court held that it must insure that any tradition of destroying derailment-related documents be discovered and brought to an end. The court s order stated that the plaintiff would be able to conduct limited discovery of the expert s report by deposing the expert. 304

305 Trammell v. Anderson Coll., 2006 WL (D.S.C. July 17, 2006). In an employmenttermination dispute, the defendant moved to quash a subpoena issued to a computer consultant retained in anticipation of litigation. In turn, the plaintiff sought a motion to quash a subpoena requesting any and all electronic storage media including hard drives, zip drives, thumb drives, CD's, DVD's, etc. from and pertaining to any computer including desk top computers and/or laptops, used by [the plaintiff] from January 1, 2002 to the present. Before terminating the plaintiff, the defendant hired a computer consultant to analyze the plaintiff s hard drive to determine the authenticity of certain s. Following this, the defendant retained a computer forensics expert, Kroll Ontrack Inc., to create a forensic image of the hard drive, conduct a more thorough investigation of the computer media, and store the hard drive with the defendant s law firm for preservation. Although the defendant withheld the computer consultant s records, the defendant provided the plaintiff with the more in-depth report by Kroll Ontrack, insisting the plaintiff conduct its own forensic analysis if unsatisfied with the investigation. Arguing it had maintained strict chain-ofcustody procedures, the defendant submitted affidavits stating there has been no change in the data or information on the hard drive from the time it was retrieved to the present. Finding the plaintiffs failed to show evidence that information on the hard drive had been altered, the court granted the defendant s motion to quash and ruled the plaintiffs had not met their burden in demonstrating substantial need for the computer consultant s analysis or showing they would suffer undue hardship in obtaining the relevant information through other means. The court continued by granting the plaintiff s motion to quash, noting a party cannot issue a subpoena to another party under Rule 45, but should have requested production of the plaintiff s personal computer pursuant to Rule 34. MGE UPS Systems v. Fakouri Electrical Engineering, Inc., 2006 WL (N.D. Tex. March 14, 2006). The defendants filed a motion to strike the plaintiff s expert testimony, claiming that the expert had contaminated and destroyed electronic evidence by using improper forensic methodology. The defendant s expert contended that the plaintiff s expert had made a number of errors in conducting an examination of six impounded laptop computers, specifically: (1) used a methodology that deleted 71 files on the computers; (2) used a methodology that contaminated and altered the date and time stamps on 8,803 files on the computers; (3) did not use sanitized floppy disks to boot the computers or to copy data from the computers; (4) performed multiple forced shutdowns on the computers that may have created a number of cross-linked files found on the computers; (5) used improper ghosting procedures to image the computers' hard drives and only obtained part of the data on the computers; and (6) used computers without wiped hard drives during the ghosting procedure. Although the court found evidence that some files were deleted or altered, the court accepted the plaintiff expert s explanations that he had excluded the compromised electronic data in reaching his conclusions. The court denied the defendant s motion, finding that the expert s qualifications and explanations of his methodology in conducting a forensic examination of the laptop computers were sufficiently reliable and that he applied the principles and methods reliably. The court also refused the defendant s motion to limit the subject area of plaintiff s expert, holding that FRE Rule 702 and Daubert principles would be inconsistent with attempting to parse these computer issues and the experts allowed to discuss them into very narrow specialties. Griggs v. Harrah s Casino, 929 So. 2d 204 (La. Ct. App. 2006). In a casino gaming dispute, the defendants appealed the trial court s decision as erroneous for relying on witness testimony rather than forensic tests in ruling that the plaintiffs had won a slot machine jackpot. The defendants offered the testimony of several experts who, after conducting a forensic examination of the computer microprocessor of the slot machine, concluded that no jackpot had been won by the 305

306 plaintiffs. However, one of the defendant s experts had made a pre-trial statement suggesting data had been lost, casting his conclusions into doubt. The plaintiff s expert did not conduct an examination of the slot machine, but opined that the record of the win was stored in temporary memory which was lost or corrupted when the casino technician powered the slot machine off and on before a forensic examination could be conducted. The appellate court affirmed the trial court s decision, holding that there was sufficient eyewitness testimony to provide an adequate basis for the verdict as well as admissions from defendant s forensics experts to allow the jury to doubt their testimony. Olson v. International Bus. Machs., 2006 WL (D. Minn. Mar. 1, 2006). In a case involving allegations of wrongful termination from employment, the parties filed cross-motions for summary judgment. After terminating the plaintiff, the defendant requested the return of a company-issued laptop and instructed the plaintiff not to make any changes to the laptop. The laptop was returned and examined by a computer forensic expert, who found evidence of data deletion. The expert indicated the computer s file content was unrecoverable, but file names several of which related to sexually explicit material were located. Following the investigation, the plaintiff admitted to deleting data from the laptop after his termination, but testified others, including family and friends, had used the machine. In seeking summary judgment, the defendants claimed they would have terminated the plaintiff if they knew he was visiting Internet sites featuring sexual content. The defendants also claimed the plaintiff s spoliation of data was grounds for termination. In support of his summary judgment motion, the plaintiff declared the defendants could not prove facts to support its after-acquired evidence defense. The court declined to grant summary judgment for either side and found a factual dispute exists regarding whether [the plaintiff] is responsible for the files found on the laptop and regarding whether [the defendants] would actually have terminated [the plaintiff] in this situation. Kathrein v. McGrath, 166 Fed.Appx. 858 (7th Cir. Feb. 7, 2006). In a case involving a defamation action, the plaintiff was ordered to stop posting pornographic material on a Web site and to stop creating redirections from that site to other pornographic Web sites. Suspecting the plaintiff violated the order, the allegedly defamed individual sought to hold the plaintiff in contempt. The plaintiff admitted he inserted a command that would redirect users of the Web site, but stated the programmed redirection would occur only after a three hundred billion second delay. Doubting the delay feature existed, the individual sought and received an order permitting immediate inspection of the plaintiff s computer. A computer forensic expert inspected the computer and concluded the computer he was given was not the one used as the server for the Web site. Admitting he switched computers, the plaintiff claimed he left the old computer outside his office and did not know who took it. The court awarded the individual the costs of the expert s wasted investigation. The plaintiff then filed a lawsuit against the expert (cited above) claiming the expert drafted a fraudulent bill and violated federal statutes by performing an inspection beyond the scope of his authority. The expert sought dismissal of the suit. The trial court dismissed, ordering the plaintiff to pay more than $20,000 to the expert for his attorneys' fees in defending a frivolous lawsuit. On appeal, the court concluded dismissal was warranted because the plaintiff lacked standing to challenge the fraudulent bill. Because the appellate court s reason for dismissal differed from the trial court s reason for dismissal, the appellate court vacated the sanctions award and remanded the case for re-evaluation. United States v. Ray, 428 F.3d 1172 (8th Cir. 2005). The defendant appealed an extortion conviction relating to an attempt to extort $2.5 million from a company by sending s threatening to exploit a breach in the company s computer security. Arguing insufficiency of the evidence, the defendant contended the government had not established who actually sent the e- 306

307 mails. During the government s investigation, a computer forensic expert had examined the defendant s hard drive and found three threatening s and other incriminating evidence. The expert testified the s and documents were created by someone typing on the computer. The expert also stated that someone had logged onto the Internet from the computer using the screen name and password used to send the s. Further, the expert found no evidence of remote access or hacking into the computer. Based on this evidence, as well as the defendant s admission he logged onto his computer and the Internet several times a day, the appellate court upheld the conviction. Sonista, Inc. v. Hsieh, 2005 WL (N.D.Cal. Nov. 21, 2005). The plaintiff sought summary judgment in a case involving a breach of fiduciary duty claim. In support of its motion, the plaintiff produced s, retrieved by a computer forensic expert from the defendant s work laptop, that evidenced self-dealing on the part of the defendant. The defendant argued the mere presence of these s was insufficient to establish the existence of undisputed material facts. Although it agreed, the court awarded summary judgment in favor of the plaintiff and declared a dispute of material fact did not exist because the defendant failed to contradict the evidence. All Covered, Inc. v. Moore, 2005 WL (Cal. Ct. App. Oct. 25, 2005). In an action alleging trade secret misappropriation, unfair competition and breach of contract, the plaintiff obtained a preliminary injunction that prevented the defendants from engaging in business with the plaintiff s customers. The defendants appealed the injunction arguing the evidence was insufficient. The plaintiff claimed it lost a significant amount of customers after one of the defendants resigned from the plaintiff s company. In support of its claim, the plaintiff presented evidence from a computer forensic investigation showing the defendants' work computer hard drives had been wiped clean before they left the company. The computer forensic expert also recovered an from one of the defendants to an unknown correspondent. The stated that another defendant was forming a new company and some of plaintiff's employees were going with him. Additionally, the plaintiff s information technology employee discovered the defendants' work computers were not set up to automatically backup data pursuant to company policy and the defendants had destroyed copies of critical customer information. The appellate court upheld the preliminary injunction stating, [T]he trial court had a reasonable basis to conclude that the defendants' acts in concealing this activity and in altering their company computers before returning them, to delete evidence of these activities, amounted to evidence of actual misappropriation and use of confidential information. Tilberg v. Next Mgmt. Co., 2005 WL (S.D.N.Y. Oct. 24, 2005). During discovery, the court ordered the defendants to give the plaintiff s computer forensic expert access to two servers and ordered the parties to split costs. However, when the forensic expert began his examination, he was unable to access the defendants second server. The defendants claimed this was the result of a system crash. After the discovery deadline passed, the plaintiff again sought access to the second server as well as permission to search the defendants central non- server and two specific employees desktop computers. The defendants submitted an affidavit from its information technology personnel indicating the computer system did not contain relevant documents. However, the plaintiff s expert found 187 occurrences of the word Tilberg in active space, which could have been found with standard search tools, and 97 occurrences of Tilberg in deleted files. The plaintiff declared the defendants should have produced these files without the need for a forensic search. Additionally, the plaintiff presented documents obtained from third parties that further proved relevant documents existed despite the defendant s contrary claims. Finding the defendants either inadvertently or deliberately delayed and obstructed discovery in this case, the court ordered the defendants to provide the expert with access to the second 307

308 server, the central server, and the two desktop computers. See also Tilberg v. Next Mgmt Co., 2005 WL (S.D.N.Y. Dec. 28, 2005)(addressing the issue of privileged s uncovered in the search). Harbuck v. Teets, 152 Fed.Appx. 846 (11th Cir. 2005). In an employment discrimination lawsuit, the plaintiff appealed a district court s grant of summary judgment in favor of the defendant. The plaintiff argued the district court erred in involving the district court's own computer personnel in discovery and in finding the defendant had fully produced all discoverable electronic data. During the discovery process, the plaintiff filed a motion to compel discovery on the grounds that the defendant deleted s and destroyed documents. In response, the court ordered both parties to submit their copies of data to the court's information technology ( IT ) personnel to see if the material could be retrieved. The court's personnel successfully retrieved the information, and the court closed discovery without requiring the defendant to take further action. The court also granted summary judgment declaring it had no reason to believe the defendant was concealing data or harassing the plaintiff during discovery. In affirming the district court s decision, the appellate court noted the district court did not abuse its discretion in having the IT personnel evaluate the data as the IT personnel was acting as a neutral party on behalf of the court. Finding no reason existed to believe the defendant was hiding information, the court also rejected the plaintiff s contention that all electronic documents found in discovery were not fully produced. Lloyd v. United States, 2005 WL (D.N.J. Aug. 16, 2005). The defendant appealed from a conviction under a federal computer fraud statute, arguing, inter alia, the prosecution had tampered with the evidence leading to his conviction. An investigation of the defendant s former employer s network revealed that a string of computer commands, designated as a Time Bomb, had been programmed to automatically delete massive amounts of the company s data at a predetermined time. Kroll Ontrack investigated hard drives damaged by the Time Bomb program. On appeal, the defendant argued the government tampered with copies of the hard drives it received back from Kroll Ontrack because the drives were not the same as those provided by the Secret Service. Specifically, the defendant claimed different amounts of "zeroes" were inserted onto the drives. The defendant also alleged his expert fully recovered the lost data once the zeroes were removed. The defendant further argued four files were added onto copies of the drives from Kroll Ontrack, one of which was deleted and no longer contained data and three that consisted of resumes and correspondence documents. Rejecting the defendant s arguments, the court upheld the defendant s conviction and found the defendant failed to show the discrepancy among the copied drives was sufficient evidence to overcome the trial court s determination. See also United States v. Lloyd, 269 F.3d 228 (3rd Cir. 2001). Breezevale Ltd. v. Dickinson, 879 A.2d 957 (D.C. Cir. 2005). A tire distributing company brought an action against its attorneys for legal malpractice. The company alleged the attorneys should have delayed the deposition of one of the company s employees until the company could further investigate the employee s conduct. The employee being deposed claimed she forged documents relating to a lawsuit against a tire manufacturing company at the direction of and in collaboration with company executives. At trial, the court dismissed the legal malpractice lawsuit and imposed fees upon the company for knowingly bringing a suit based on forged documents. A computer evidence expert testified two documents were created on the employee's computer with a last access date that corroborated the employee's testimony. In addition, the expert determined one of the documents was computer-generated, even though the defendant did not own a computer at that time. Other evidence of forgery included two documents that were typed on a letterhead that did not exist at the time of the alleged document create dates. Based on this evidence, the trial court came to the inescapable conclusion the documents at issue were forged. The appellate 308

309 court affirmed the lawsuit dismissal and award of $4 million in fees based on its finding that sufficient evidence demonstrated the company s executives knew and participated in the forgeries. However, the court vacated the $1 million punitive sanctions, noting, [t]he other sanctions imposed by the trial court themselves bore punitive elements. Experian Info. Solutions, Inc. v. I-Centrix, L.L.C., No. 04 C 4437 (N.D. Ill. July 21, 2005). Claiming breach of contract and misappropriation of trade secrets, the plaintiffs filed suit against the defendant, a former employee, and his new company, formed after he stopped working for the plaintiffs. During discovery, the plaintiffs sought to obtain mirror images of the defendant s computers. The defendant argued the request was overbroad, would capture proprietary information, and would hinder the defendant s business operations. Alternatively, in the event the court decided the mirror images were discoverable, the defendant proposed that it use the standards set forth in Simon Prop. Group L.P. v. mysimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000). In mysimon, an independent expert created and examined a mirror image of the defendant s hard drive and then submitted potentially relevant documents to the defendants. The plaintiffs argued the method was too narrow as it would not allow them to evaluate relevant contextual data and metadata found in the mirror image. The court adopted a modified version of the mysimon framework, adding a provision to facilitate the recovery of metadata specified in a list generated by the plaintiffs. The court ordered an independent expert [to] review the bitstream copy for contextual information and metadata that falls within the scope of this list, as well as for documents relevant to Plaintiff s discovery requests. Galaxy Computer Servs., Inc. v. Baker, 325 B.R. 544 (E.D. Va. 2005). A Chapter 11 debtor brought an action against two of its former officers, who purchased a portion of the debtor s assets, and the parent company that purchased the assets. Interalia, the plaintiff, sought to introduce testimony from a computer forensic expert to establish that the defendants deleted files from the plaintiff s computer. The expert analyzed nine of the plaintiff s hard drives and prepared an expert report detailing the deletion of the foreclosing bank s directory, all files containing the word "Baker, from the plaintiff's mail server and several other deletions. Seeking to have the testimony excluded, the defendants argued that the testimony was irrelevant, the expert did not follow proper procedures, and the expert was unqualified to offer opinions about altered or deleted data. The defendants further argued the expert and its employer failed to follow their own internal chain of custody procedures, making them unable to ensure the recovered data was accurate. Rejecting the defendants arguments, the court declared the expert could testify based on his knowledge, skill, experience, training and education. The court also declared the defendants could crossexamine on any chain of custody issues. Liebert Corp. v. Mazur, 827 N.E.2d 909 (Ill. Ct. App. 2005). The plaintiffs sought to enjoin several of its former employees from allegedly using electronic e-commerce Web sites containing confidential customer lists, quotations and price books in a new, competing business. One of the defendants admitted that he downloaded price books from the company s server to his laptop on the day he resigned. The plaintiffs hired a computer forensic expert to examine the laptop, and the expert discovered confidential files were accessed, downloaded and placed in a Zip file. The expert also determined a new Zip folder containing quote histories and budgets was created and subsequently copied from the hard drive to a CD-Rom on the same day the defendant was served with the plaintiffs complaint and preliminary injunction motion. During the copy, the computer automatically placed the files in a CD burning folder, a folder most computer users are not aware exists. During the next few days, in a mass wave of deletion, over 12,000 files were deleted from the defendant s computer. The laptop s application log, which tracks programs like the CD-Rom burning program, was also deleted four days after the complaint was served. Despite this 309

310 evidence, the trial court denied the plaintiff s motion for a preliminary injunction, finding insufficient evidence existed to prove any of the defendants used the price books before they were destroyed. On appeal, the court reversed the decision, determining the trial court abused its discretion, and ordered the trial court to grant a reasonable preliminary injunction. The appellate court noted, [b]ecause [the defendant] destroyed this crucial piece of evidence [the application log], we presume it would have showed he successfully copied the price books on a CD. MMI Prods., Inc. v. Long, 2005 WL (D.Md. Apr. 1, 2005), rev d, 231 F.R.D. 215 (D.Md. 2005). Alleging a former employee misappropriated confidential company information, the plaintiff hired a computer forensic expert to analyze the employee s hard drive. The plaintiff s expert concluded, there was an attempt to overwrite data through a selective restoration from previous backup session or a reinstallation of Microsoft Windows In defending the action, the employee hired a Kroll Ontrack computer forensic expert to examine the plaintiff expert s report. The Kroll Ontrack expert discovered a Dell computer support Web site listing the laptop as having been shipped to the plaintiff after the date the plaintiff s expert concluded the restoration activity might have taken place. The Kroll Ontrack expert also concluded any deletions or overwrites resulted from normal processes, not efforts by a user to delete information. Finally, the Kroll Ontrack expert noted the laptop had been imaged by the plaintiff s expert after at least two sessions of non-forensic access while the plaintiff's lawyers had control of the laptop. A magistrate judge proposed the plaintiff and its counsel pay Kroll Ontrack s costs as a sanction for failing to make reasonable inquiries into the reliability of their own expert's report. Although the court found no error with the magistrate s factual findings, it declined to award costs and concluded attorneys should not be sanctioned for deficiencies or errors in an expert's report. Fowler v. Bell Helicopter Textron, Inc., 2005 WL (N.D.Tex. Mar. 9, 2005). The plaintiff filed suit against the defendant claiming copyright infringement, breach of contract, and trade secret theft. The plaintiff claimed he wrote a computer software program prior to his employment with the defendant and was promised compensation for the program by the defendant. The defendant failed to pay and developed a similar program after the plaintiff terminated his employment. The defendant claimed the plaintiff wrote the program during his employment, counterclaimed with similar allegations, and sought a declaratory judgment and partial summary judgment. Contending summary judgment was inappropriate, the plaintiff argued that date and time stamps on floppy discs containing the code proved he created the program prior to working for the defendant. The plaintiff presented a computer forensic expert s affidavit that indicated it would have been an enormous task to change the date and time stamps associated with the files on the floppy discs. The defendant offered an opinion by another expert who stated it would be relatively easy to doctor the time and date stamps on the floppy discs containing [the plaintiff's] original code. Declining to grant the defendant s motion for summary judgment, the court found a genuine issue of material fact existed and declared, [a]ny determination as to which expert to believe belongs to the jury. Williams v. Mass. Mut. Life Ins. Co., 226 F.R.D. 144 (D.Mass. 2005). In a case arising from employment discrimination allegations, the plaintiff filed a motion to appoint a neutral computer forensic expert. The plaintiff indicated he needed the expert to inspect the defendants computer hard drives and search for an allegedly incriminating , which the plaintiff had once possessed but could no longer find. In the event the expert recovered the , the plaintiff asked the court to order a more detailed investigation of the defendants computers. The plaintiff also requested an order compelling the defendants to preserve all electronic and paper documents and to suspend backup tape recycling, automated deletions, and hard drive reformatting. In response, the defendants argued the was most likely in a memorandum which was already produced. 310

311 The defendants also claimed they already conducted a forensic investigation, which failed to identify the . The court declined to appoint the forensic expert, finding the plaintiff s request at best [a] highly speculative conjecture. The court further reasoned, [b]efore permitting such an intrusion into an opposing party's information system particularly where, as here, that party has undertaken its own search and forensic analysis and has sworn to its accuracy the inquiring party must present at least some reliable information that the opposing party's representations are misleading or substantively inaccurate. Although declining to appoint the expert, the court ordered the defendants to preserve documents, hard drives and boxes that their forensic expert had previously searched. In re Estate of Steed, 152 S.W.3d 797 (Tex. Ct. App. 2004). In a case involving a will contest, the sons of the deceased filed an application to probate a 2001 computer-generated will. The deceased s widow filed a conflicting application to probate a 1998 holographic will. At trial, the jury determined the deceased never executed the computer-generated will and the deceased did not execute the holographic will with testamentary intent. On cross-appeal, the sons argued the computer-generated will found on the deceased s computer after his death was properly executed as a matter of law and the jury s decision went against the great weight of the evidence. At trial, the widow s expert had suggested someone could have easily manipulated the create date of the computer-generated will, making it unreliable. The appellate court noted, however, that the widow s expert was not a computer expert and had not actually examined the deceased s computer. Moreover, the testimony from the widow s expert conflicted with testimony given by the sons expert who had actually examined the computer. The sons computer expert testified that any manipulation of the create date would have been easily detectable. The sons expert further testified he found no evidence of manipulation. Based on this and other testimony, the court reversed and remanded, stating the jury s decision was clearly wrong and unjust and contradicted the great weight of the evidence. Laurin v. Pokoik, 2004 WL (S.D.N.Y. Nov. 30, 2004). In an employment suit, the defendants referenced an entry the plaintiff allegedly made in a ledger on the defendants computer system shortly before they fired the plaintiff. The plaintiff requested the defendants produce a document showing the true date when the entry was actually entered into the computer system. The court declined to order the production but stated the plaintiff could, at the plaintiff s expense, request the court to order the defendants to permit the plaintiff s computer forensic expert to examine the computer. Evolution, Inc. v. The Suntrust Bank, 2004 WL (D. Kan. Sept. 29, 2004). In an action for copyright infringement, breach of contract, and misappropriation of trade secrets, the plaintiff accused the defendants of not producing source code, object code, and application databases in response to a production request. The defendants argued that the plaintiff should have retained an expert to assist with accessing the code. The court appointed a special master to assist with the technical aspects of the discovery dispute. In allocating fees and expenses, the special master recommended that the defendant pay 80 percent of his fees because the majority of the time spent on this matter [is] directly attributable to defendants representations and lack of cooperation. The special master recommended that the parties evenly split other expenses. Both parties objected to this fee splitting recommendation. While the court agreed with the special master s findings regarding the defendant s lack of cooperation, the court ordered the defendant to pay 70 percent of the fees and the plaintiff to pay 30 percent. The court ordered the parties to split the other expenses evenly. United States v. Alexander, 2004 WL (E.D.Mich. Sept. 14, 2004). In a criminal proceeding, the government seized the defendant s computer to search for evidence that the 311

312 defendant unlawfully transferred obscene pictures over the Internet. After the seizure, the defendant requested that the government provide him with a mirror image of his computer hard drive to allow his computer forensic expert to examine the drive for potential evidence. In an affidavit, the forensic expert declared he planned to form an opinion, based upon his examination of the hard drive, as to whether the defendant knowingly received the obscene images. The expert stated that a mirror image was necessary so he could perform his analysis in his own laboratory, using his own computer forensic software and hardware, which might be difficult to transport to another location. The government objected, declaring the defense forensic expert could review the mirror image only under its supervision. Determining the hard drive could contain relevant dates, times, and circumstances surrounding the receipt of the pictures, the court ordered the government to produce the mirror image. Fox Indus. v. Gurovich, 2004 WL (E.D.N.Y. Aug. 25, 2004). The defendant appealed two contempt orders issued against him for discovery misconduct, arguing that the magistrate judge should not have appointed a computer forensic expert to examine his computer without his attorney present during the examination to shield the expert from looking at personal or privileged data. In response, the district court declared the defendant had the right to request a protective order concerning the privileged information, to have his attorney present at the examination, and to have his attorney identify privileged or personal data. However, the court found the defendant s objection under the present circumstances unconvincing and adopted the magistrate s order, noting the defendant s or his attorney s mere assertions that a document or is personal or privileged will not suffice to prevent its discovery. Munshani v. Signal Lake Venture Fund II, 805 N.E.2d 998 (Mass. App. 2004). In a breach of contract action, the plaintiff appealed a superior court judgment that dismissed his complaint on the grounds that he had intentionally fabricated an message and then attempted to hide that fabrication. In the original action, the plaintiff presented an as evidence that precluded that trial court from dismissing his claim. The defendant, however, alleged that the plaintiff had fabricated the and moved for a preservation and production order. The court issued the order and appointed a neutral computer forensics expert to investigate the allegations. The expert prepared a 147-page report in which he determined that the plaintiff had fabricated the . The judge adopted the expert s report as his findings on the issue and dismissed the plaintiff s suit, ordering him to pay the expert s costs and the defendant s attorney fees. See Munshani v. Signal Lake Venture Fund II, 13 Mass.L.Rptr. 732 (Mass.Super. 2001). On appeal, the plaintiff admitted that he fabricated the and submitted a false affidavit. The plaintiff argued that the judge erred in finding that the was material to the case and that dismissal sanctions were too severe under the circumstances. The appellate court rejected the plaintiff s argument and declared that the judge was justified in imposing the ultimate sanction of dismissal. In re Lorazepam and Clorazepate Antitrust Litig. v. Mylan Lab., Inc., 300 F. Supp. 2d 43 (D.D.C. 2004). In a class action antitrust lawsuit, the plaintiff sought to compel discovery of electronic documents. The defendant objected to the request arguing that the documents had already been produced. The plaintiff responded, claiming that the unindexed document dump produced on CD-ROM did not meet defendant s obligation to match documents with discovery requests as closely as possible. The court required the plaintiff to take the CD-ROM s to a computer forensic or electronic discovery expert before the court would require the defendant to index the information. The e-evidence expert was to ascertain whether the electronic information could be read and searched by commercially available software or converted to a format in which it could be done. 312

313 Physicians Interactive v. Lathian Sys., Inc., 2003 WL (E.D.Va. Dec. 5, 2003). The plaintiff, the host of a medial website, contended that the defendant s employee secretly hacked into the plaintiff s website and stole confidential customer lists and computer software code. The plaintiff moved for a temporary restraining order, preliminary injunction, and limited expedited discovery order. Specifically, the plaintiff requested permission to enter defendant s computer server, work and home desktop and notebook computers, and any sites where the computers used in the alleged attacks were located to secure a mirror image of the computer equipment containing electronic data concerning defendant s alleged attack on plaintiff s website. The court found that the plaintiff made a preliminary showing of an invasion of its computer system, unauthorized copying of its customer list, and theft of its trade secrets. The court granted the plaintiff s request and directed that discovery must be done with the assistance of a computer forensic expert. Premier Homes and Land Corp. v. Cheswell, Inc., 240 F. Supp. 2d 97 (D.Mass. 2002). In a property dispute, the plaintiff used an purportedly sent from one of defendant s stockholders to the plaintiff s president to form the core of its claim that the defendant was not complying with the terms of a lease. The defendant filed an ex parte motion to preserve certain electronic evidence and expedite the production of electronic records. The court, stating that it was necessary to determine the origin of the disputed , ordered defendant s experts to create mirror images of plaintiff s computer hard drives, backup tapes, and other data storage devices. Soon thereafter, the plaintiff confessed to his attorney that he had fabricated the by pasting most of a heading from an earlier, legitimate message and altering the subject matter line. The defendant s motion to dismiss was granted and the court ordered the plaintiff to pay the defendant s attorney and expert fees and court costs for committing a fraud on the court. Taylor v. State, 93 S.W.3d 487 (Tex. App. 2002). On appeal, the defendant argued that the trial court's refusal to order the State to provide him with a complete copy of the hard drive in question as material physical evidence for inspection requires reversal. Likening the situation to a drug case in which the defendant has the right to have the contraband reviewed by an independent expert, the appellate court stated, mere inspection of the images is not the same as an inspection of the drive itself (or an exact copy thereof). It is certainly not the same as an independent forensic examination of the contents of the hard drive by an expert. In re Pharmatrak, Inc. Privacy Litigation, 220 F. Supp.2d 4 (D. Mass. 2002), rev d on other grounds, In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir. 2003). In a class action Privacy matter, the plaintiffs alleged that the defendants had secretly intercepted and accessed plaintiffs personal information and Web browsing habits through the use of cookies and other devices, in violation of state and federal law. The plaintiffs raised claims under The Wiretap Act, The Stored Communications Act, and The Computer Fraud and Abuse Act. Using computer forensic tools, plaintiffs expert was able to analyze the defendant s Website tracking logs and determine that the defendants had captured and possessed detailed private information about the plaintiffs, including their: names, addresses, telephone numbers, dates of birth, sex, insurance status, medical conditions, education levels, occupations, and content. Finding that the plaintiffs failed to establish necessary elements of each of the above listed statutes, the court issued Summary Judgment in favor of the defendants. United States v. Lloyd, 269 F.3d 228 (3rd Cir. 2001). The Third Circuit has ruled that a man convicted of planting a computer time bomb that crippled operations at New Jersey-based Omega Engineering Corp. is not entitled to a new trial on the basis of a juror prejudice. The ruling reinstates the verdict in which the defendant was convicted on one count of computer sabotage. Computer experts were essential in recovering the evidence of the "time bomb". 313

314 Northwest Airlines v. Local 2000, C.A. No DWF/AJB (D. Minn. Feb. 2, 2000) (Order on defendants Motion for Protective Order and plaintiff s Motion to Compel Discovery); Northwest Airlines v. Local 2000, C.A. No DWF/AJB (D. Minn. Feb. 29, 2000) (Memorandum Opinion and Order). The court ordered plaintiff s expert to act as a neutral 3rd party expert; on behalf of the court, the expert collected and imaged the defendants personal hard drives and provided the parties with a complete report of all data deemed responsive. The court issued detailed protocol for conducting the electronic discovery. Simon Property Group v. mysimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000). On plaintiff's motion to compel in a trademark case, the court held that the plaintiff was entitled to attempt to recover deleted computer files from computers used by defendant s employees. The court required that protective measures be taken, including plaintiff's appointment of an expert who would serve as an officer of the court and turn over the recovered information to defendant's counsel for appropriate review. Playboy Enters., Inc. v. Welles, 60 F. Supp.2d 1050 (S.D. Cal. 1999). The court appointed a computer expert who specialized in the field of electronic discovery to create a mirror image of defendant s hard drive. The court reserved Respondent s right to object to production after data capture by expert and review of materials. National Assoc. of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987). The court imposed sanctions on party that altered and destroyed computer documents in the regular course of business. The court appointed special master to oversee the discovery process. United States v. IBM, 76 F.R.D. 97 (S.D.N.Y. 1977) Where the defendant was to produce information to the plaintiff pursuant to prior court orders, but production did not comport with spirit and intent of those orders and was highly technical and complex in nature, the court determined that exceptional conditions existed, warranting appointment of examiner. The examiner s duties included reporting to court as to information that the defendant possessed and produced and supervising discovery. Computer Forensic Protocols Escamilla v. SMS Holdings Corp., 2011 WL (D. Minn. Oct. 21, 2011). In this sexual battery and harassment litigation, the defendants a former employer and supervisor objected to a magistrate judge s order to produce a personal laptop for forensic review, search backup tapes for deleted s and pay the associated costs. Specifically, defendants object that reinstalling the operating system on the supervisor's personal computer at a technician's recommendation was not done intentionally or in bad faith and that the court compelled discovery based solely on a forensics expert s "speculation" that reinstallation was done to "hide or destroy relevant information." Additionally, the defendants argued that the court did not properly conduct a proportionality analysis by considering the prejudice suffered by the plaintiff. Finally, the defendants argued that data on the employer s backup tapes was not reasonably accessible and would constitute an undue burden. The court overruled the objections related to the personal laptop, finding the timing of the reinstallation which was done two weeks after the plaintiff's motion to compel highly suspect and further noted that the prejudice suffered could only be determined by allowing a forensics expert to review the laptop. With regard to searching employer's backup tapes, the court overruled the defendants objection, finding that the cost estimate from a single vendor was "wildly overstated" and further found that increased costs were a result of the defendants failure to preserve data at the outset of litigation. However, the court found that searching the 314

315 backup tapes for deleted data was technically impossible and ordered the defendants to search the backup tapes only for live data. ANZ Advanced Tech., LLC v. Bush Hog, LLC, 2010 WL (S.D. Ala. Sept. 9, 2010). In this contract litigation, the plaintiffs moved to modify a court order requiring two of its executives to produce hard drives or other data storage devices for forensic analysis. The plaintiffs claimed Indian authorities denied permission for production, rendering them unable to comply with the order. Upon review of the documents submitted by the plaintiffs to support its asserted claims and efforts, the court found the plaintiffs had not followed the ordered protocol in requesting permission and determined that the proffered evidence did not establish that Indian law prohibited compliance. Addressing a document the plaintiffs admittedly altered, the plaintiffs claimed it did not contain substantive information and requested a reevaluation of whether the alteration casted doubt over production authenticity. Finding no credible evidence to rebut the original conclusion, as well as the discovery of two more critical document fabrications, the court denied the motion, ordered the immediate production of the requested hard drives for forensic examination and stayed consideration of the defendant s motion to show cause why the case should not be dismissed. Peal v. Lee, 2010 WL (Ill. App. 1 Dist. July 30, 2010). In this defamation action, the plaintiff appealed the circuit court s dismissal with prejudice following his failure to comply with discovery requests and intentional destruction of evidence. On appeal, the court affirmed the circuit court s order based on review of testimony from the defendants computer forensic expert that indicated the plaintiff obtained a new hard drive and used seven different data wiping programs to permanently delete data from his personal computer just days prior to its surrender. Forensic investigation of the personal computer also indicated the plaintiff failed to produce as many as five external storage devices that may have contained discoverable information. In affirming the order s severity, the court berated the plaintiff for seeking to cover up his electronic tracks by subterfuge and making an argument of pure pettifoggery on appeal, characterizing his actions as the personification of bad faith and a deliberate, contumacious and unwarranted disregard of the court s authority. Finally, the court denied the defendants request for monetary sanctions finding dismissal an adequately severe sanction. Griffin v. State, 2010 WL (Md.App. May 27, 2010). In this criminal case, the defendant appealed his murder and handgun convictions, arguing the court erred in admitting a printed MySpace page into evidence, as it was not properly authenticated and was prejudicial. Given that a MySpace personal profile contains content supplied by the site s individual users, the State contended that the identifying information in the page s content sufficiently linked the page to the person because it included the person s photograph, date of birth, references to the person s children and the defendant s nickname. Agreeing with the State, the court held that even with pseudonymous and anonymous profile names, individualized content on social networking sites may lend itself to authentication of a particular profile page as having been created by the person depicted in it. The court also denied the defendant s argument regarding the prejudicial effect of the evidence, citing the trial court s redaction of irrelevant evidence from the profile and the limiting instruction given to the jury. State v. Rivera, 2010 WL (Ohio App. 12 Dist. Feb. 1, 2010). In this action involving the Stored Communications Act (SCA), the defendant appealed his conviction, arguing text and picture messages obtained from his cell phone provider should have been suppressed. The defendant also argued the trial court erred in not denying the SCA as unconstitutional. Denying the defendant s argument regarding the constitutionality of the SCA, the court found the detective violated the SCA by not providing notice to the defendant as required. However, the SCA does not include exclusion as a remedy, and thus the exclusionary rule was inapplicable. Addressing the 315

316 suppression argument, the court deferred to the trial court s determination of probable cause and found that based on the facts and circumstances, there was a substantial probability that evidence of criminal activity would have been found through other locations and media. Thus, the court denied the defendant s appeal and affirmed the trial court s ruling. United States v. Kimoto, 588 F.3d 464 (7th Cir. Dec. 2, 2009). In this criminal case, the defendant appealed his conviction, arguing that the government had destroyed or withheld exculpatory evidence and failed to provide forensic copies of hard drives, which resulted in a Brady violation. Specifically, the defendant claimed the government did not provide s that he claimed would demonstrate the existence of a conspiracy between a witness and another party. The government rebutted these claims, asserting that copies of all electronic evidence reviewed and all original evidence to be used at trial was provided to the defendant. In affirming the conviction, the court determined there was no Brady violation. To support its ruling, the court noted that no destruction or spoliation on behalf of the government existed, there was a material lack of proof that certain alleged evidence was missing, and the defendant failed to make a request for forensic copies until immediately prior to trial. Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 2009 WL (D.N.J. Oct. 14, 2009). In this business dispute, the defendants alleged the plaintiffs copied the defendants' computer files in violation of the Computer Data Access and Fraud Act (CDAFA). Prior to the joint venture termination, the plaintiffs' computers were connected to the defendants' server via a virtual private network. After the joint venture ceased, the plaintiffs copied approximately 152,000 documents, including proprietary business information, contained on the defendants' server in an act the court labeled "brazen and surreptitious." The plaintiffs claimed the defendants knew access to the joint system existed, were concerned the defendants would destroy relevant information on the network and that the defendants' litigation hold letter required them to preserve all documents within their possession or control. Finding the plaintiffs' "clandestine copying of computer files" was not performed purely for e-discovery purposes, the court determined the copying of files created after the joint venture dissolved was a clear violation of the CDAFA. Accordingly, the court granted the defendants' motion for partial summary judgment. Koosharem Corp. v. Spec Personnel, LLC, 2008 WL (D.S.C. Sept. 29, 2008). In this breach of contract, inter alia, litigation, the plaintiffs claimed the former employee defendant stole confidential information and used it to expand the business of his current employer. The plaintiff thus sought production of the defendants business and personal computers for forensic inspection, alleging the s produced by the defendants were not accurate copies. The plaintiffs also argued that electronic documents were modified after the defendants were put on notice of litigation, noting that the defendants did not make any preservation efforts. Finding forensic analysis appropriate, the court granted the motion to compel. The court established a detailed procedure to govern the forensic examination and ordered the parties to share equally in the fees, costs and expenses charged by the forensic expert. Michigan v. Raar, 2008 WL (Mich.App. Sept. 16, 2008). In this criminal prosecution, the defendant appealed his jury trial convictions, including a conviction for using the Internet or computer system to engage in criminally prohibited communications. The defendant argued the trial court improperly permitted the government s expert witness to offer opinions on computer activity. At trial, the defendant objected to the expert witness computer forensics qualifications, but did not specifically identify a basis for objection. Overruling the objection, the trial court noted the expert witness had: over 800 hours of training in computer forensics; three years of experience working in state police computer forensics lab; was a certified member of the International Association of Computer Specialists; and had performed over 100 computer forensic examinations. 316

317 This court held that the trial court did not abuse its discretion in relying on the forensic expert s testimony and its determination that the witness had sufficient knowledge, skill, experience, training, or education in the field of computer forensics. Square D. Co. v. Scott Elec. Co., 2008 WL (W.D.Pa. July 15, 2008). In this intellectual property litigation, the parties filed cross motions for sanctions based on the execution of a previous forensic inspection of the defendant s computer systems. The plaintiff requested a forensic inspection of the defendant s remaining computer systems, the removal of imaged data from the defendants premises, and for a default judgment sanction. The defendant requested the plaintiff be required to complete its forensic inspection on the defendant s premises, that further inspection of certain computers be prohibited, and sanctions for the plaintiff s intentional disregard for previous orders. Determining the defendant s imposition of limitations to be untimely, the court granted the plaintiff access to the defendant s computer workstations. However, the court denied the plaintiff s motion for default judgment as the defendant s conduct falls just shy of conduct befitting default judgment, i.e., flagrant bad faith and callous disregard. The court ordered the defendant to bear all costs related to the forensic inspection, consistent with past orders and warned that future baseless barriers impeding the completion of discovery will be met with sanctions and cautioned that future discovery disputes may require the utilization of a special master with costs borne by the parties. United States v. Bunty, 2008 WL (E.D.Pa. June 10, 2008). In this unlawful images criminal case, the defendant filed several motions including a motion to dismiss the case for spoliation of evidence. The defendant argued the government destroyed important and potentially exculpatory evidence in three ways: by connecting a seized flash drive to a forensically unsecure environment prior to making a forensic copy, by returning two seized laptops without making forensic copies and by viewing the contents of a floppy disk without first making a copy. The government disputed the facts as presented by the defendant instead claiming that the devices in question were preserved and detained for later examination by a forensic expert and that the laptops were imaged by the expert. Agreeing with the government, the court found no spoliation regarding the flash drive or laptops. Despite determining the last accessed date was altered after the government opened the floppy disk, the court found the defendant failed to demonstrate the government acted in bad faith or that the alteration prejudiced his case, and denied the motion to dismiss based on spoliation. Binary Semantics Ltd. v. Minitab, Inc., 2008 WL (M.D. Pa. May 5, 2008). In this trade secrets litigation, the defendants filed an emergency motion for court intervention to allow the defendants forensic expert to image the plaintiffs FTP and file servers, in addition to certain employees computers and removed hard drives. The defendants claimed this imaging was necessary to determine the integrity of previously produced ESI that contained questionable metadata. The plaintiffs opposed the motion and argued the request was overly-broad and intrusive. Agreeing in part with the plaintiffs, the court found the defendants request was largely overly broad because an image of relevant folders would resolve the documents integrity issue. The court permitted the defendants to image the relevant folders contained on the plaintiffs FTP server. The court also granted the defendants unopposed request to image the removed hard drives. Ferron v. Search Cactus, L.L.C., 2008 WL (S.D.Ohio April 28, 2008). In this case involving an alleged violation under the Ohio Consumer Sales Practices Act, the court ordered a protocol for viewing the information contained on the plaintiff s home and office computers. In considering the protocol, the court identified three categories of information contained on the plaintiff s hard drives: confidential personal information, attorney-client privileged information, and 317

318 information relating to and website advertisements. The court ordered the plaintiff s computer forensics expert to mirror image the hard drives, removing information deemed personal and confidential that could not lead to the discovery of relevant information. Additionally, the court ordered the defendant s computer forensics expert to meet with the plaintiff to identify for deletion information that is irrelevant and create a privilege log of any relevant information which is privileged. Finally, the court ordered both parties to share the costs associated with their chosen computer forensics expert. Coburn v. PN II, Inc., 2008 WL (D.Nev. Mar. 28, 2008). In this gender discrimination claim, the defendants filed a motion to compel the plaintiff to provide supplemental answers to interrogatories and requests for the production of documents. Specifically, the defendants sought a forensic examination of the plaintiff s home computers, and the plaintiff opposed the request as potentially violating her privilege, privacy and confidentiality interests. Finding the burden of compliance to be minimal, the court set out a protocol for appointing a computer specialist to conduct the examination, whose cost was payable by the defendants. The protocol contemplated agreement of the parties, whereby access to protected information would not result in waiver of the attorney-client privilege. Additionally, the parties were ordered to agree to a time and date for collection whereby the plaintiff s attorney would maintain the sole copy of the mirror image of the computers. Xpel Tech. Corp. v. Am. Filter Film Distrib., 2008 WL (W.D.Tex. Mar. 17, 2008). In this copyright infringement claim, the plaintiff filed a motion for expedited computer forensic imaging of various electronic media. Finding the plaintiff had demonstrated good cause under Fed.R.Civ.P. 26(d), the court ordered the defendant to produce computers, servers and other electronic storage devices for bit-for-bit imaging by a specified forensic examiner. The court also ordered authentication of the images via comparison of their MD5 hash values to the originals. Equity Analytics, LLC v. Lundin, 2008 WL (D.D.C. Mar. 7, 2008). In this suit, the plaintiff claimed the defendant, a former employee, illegally accessed electronically stored information after being terminated. The parties agreed a computer forensics examination was necessary to analyze the defendant s computer, but could not reach agreement on how the examination should progress. To protect his privacy, the defendant sought to restrict the search by keywords and file type, but the plaintiff argued such would be under inclusive. Recognizing that the effectiveness of a particular search methodology requires expert testimony, Magistrate Judge Facciola required the plaintiff to submit an affidavit from its examiner explaining, inter alia, the limitation of the proposed search, how the search is to be conducted, whether a mirror image would be a perfect copy and whether there would be some reason to preserve the drive once imaged. Executive Air Taxi Corp. v. City of Bismarck, North Dakota, 2008 WL (8th Cir. Mar. 4, 2008). In this 1983 discrimination claim, the plaintiff claimed the defendant violated its constitutional rights to equal protection of the laws, causing a diminution in the value of its business. The plaintiff sought a forensic inspection of the defendant s laptop, claiming such was necessary to search for not produced in discovery. The defendant argued that it had a rational basis for preferring other businesses over the plaintiff, namely generating revenue for the city. The defendant further argued against a forensic inspection, claiming it produced all relevant e- mail and such inspection could produce confidential or privileged information. The defendant filed a motion for summary judgment which was granted by the district court and upheld by the United States Court of Appeals for the Eighth Circuit. Bro-Tech Corp. v. Thermax, Inc., 2008 WL (E.D.Pa. Feb. 7, 2008). In this discovery dispute, the plaintiffs moved to compel the defendants to produce forensically sound copies of numerous electronic data storage devices that allegedly contained the plaintiffs proprietary 318

319 information. Per an earlier court order, the defendants were directed to return and then purge the plaintiffs electronic files that were stored on its servers, hard drives and thumb drives. Agreeing with the plaintiffs that an examination of the defendants hard drives and servers was necessary to determine if a violation occurred, the court ordered the defendants to produce the forensic copies to the plaintiffs attorneys on a confidential-designated counsel basis. United States v. Comprehensive Drug Testing, Inc., 2008 WL (Cal. Jan. 24, 2008). In this investigation into illegal steroid use by professional athletes, the government executed a search warrant seizing computer equipment and storage devices, claiming they could not be sorted on-site due to extensive co-mingling with other data. The defendants sought return of the evidence, arguing its seizure constituted a callous disregard for the privacy rights of individuals named in the seized databases. The court, realizing the special complexities caused by ESI and the particular difficulty faced in instances where the data is incomprehensible and unusable when outside its native format, found in favor of the government and determined the seizures were reasonable. State v. Jensen, 173 P.3d 1046 (Ariz.App.Div. Jan. 15, 2008). In this criminal case, the defendant appealed his conviction for sexual exploitation of a minor, claiming the evidence was insufficient to support the jury verdict that he knowingly possessed or received child pornography. The government conducted a forensic examination of the defendant s computer, which revealed three images that were automatically saved to the hard drive. Two of the images were found on the hard drive in temporary internet file folders and the third was recovered from an unallocated cluster. Disregarding the defendant s claims he did not knowingly possess the images as they were saved automatically into the computer s random access memory (RAM), the court determined the defendant s active search for the images was sufficient to support the conviction. In re Honza, 2007 WL (Tex. App. Dec. 28, 2007). In this real estate litigation, the defendants sought a writ of mandamus to set aside a discovery order requiring them to produce office hard drives for imaging by a computer forensic expert in an effort to locate two particular documents. The defendants objected to the discovery order, arguing it was overbroad and would lead to the disclosure of privileged and confidential information. The court looked to federal and state courts for guidance on the general process of hard drive mirror imaging for discovery. Disagreeing with the defendants, the court found the order was not overbroad, as the defendants were granted a right of first refusal in determining whether information obtained was relevant to the two documents at issue. Further, the court found there were adequate safeguards against disclosure of privileged information as the defendant was able to review for privilege prior to production. LVRC Holdings, LLC v. Brekka, 2007 WL (D.Nev. Sept. 28, 2007). In this trade secret misappropriations suit, the defendant moved the court for summary judgment, claiming the plaintiff had not established an issue of material fact and they were entitled to judgment as a matter of law. To prevail on a claim based on the Computer Fraud and Abuse Act, the plaintiff must establish access to a protected computer without authorization. In this instance, the plaintiff s computer forensic expert testified that the defendant s personal computer had been used to access the plaintiff s secured Web site, but was unable to testify as to when the access took place. Because the plaintiff did not present facts indicating that the date of access was after termination, the court granted the defendant s summary judgment motion. United States v. Bhownath, 2007 WL (D.Utah Aug. 31, 2007). In a criminal software piracy investigation, federal agents obtained and executed a warrant to search all computer systems in the defendant's home. The defendant argued the warrant was impermissibly overbroad and moved to suppress evidence obtained in the search. Disagreeing with the defendant's position that the agents' keyword searches of his computer files were the digital equivalent of "rummaging," 319

320 the court denied the motion. The court reasoned that if agents were not allowed access to all files on a computer to search for files and folders relating to a case, any defendant would be able to hide evidence of illegal conduct in unlikely places on a computer. United States v. Luken, 2007 WL (D.S.D. Aug. 21, 2007). In a criminal prosecution for possession of child pornography, the defendant argued that he was not in possession of contraband materials because he did not possess forensic software necessary to access the illegal images in question. Denying the defendant's motions to suppress evidence and dismiss the indictment, the court found that evidence of the defendant's purposeful downloading and saving of the illegal images onto his computer hard drive, in order to view them in thumbnail format, was sufficient to establish knowing possession. United States v. Flyer, 2007 WL (D.Ariz. July 13, 2007). In this case, the defendant was charged with attempted transportation and shipping of, as well as possession of, child pornography. After initially pleading guilty to the charges, the defendant retained substitute counsel and withdrew his plea. The defendant then hired a computer forensics expert to review the electronic evidence gathered through the search warrant. The expert testified via affidavit that numerous files were accessed and created months after the laptop had been seized by the government, making the data completely unreliable and unusable. The government s expert responded that battery malfunction caused the erroneous files and access dates. The court held that while the government may have been negligent, the defendant was not prejudiced, and therefore denied the defendant s motions to dismiss, suppress the evidence, and to hold a hearing to debate the evidentiary foundation of the affidavit relied on in issuing the search warrant. Barton v. State, 2007 WL (Ga.App. June 21, 2007). In a suit charging the defendant of knowingly possessing child pornography, the Georgia Court of Appeals reversed the jury trial conviction based in large part on computer forensic evidence. A computer forensic analyst testified that computers store information viewed over the internet on the hard drive in temporary internet cache files and that there is nothing the user can do to prevent this. The computer forensic expert further explained that there is no way to determine if the stored files were affirmatively sought after by the user or were pop-ups. Additionally, a user is not able to retrieve these files without special forensic software, which was not present on the defendant s computer. As knowing possession of child pornography requires proof of an affirmative step to save or download images to the computer and knowledge of their existence, the defendant did not have the required culpability to be held guilty of the crime. Advante Int l Corp. v. Mintel Learning Tech., 2006 WL (N.D. Cal. June 29, 2006). The defendant brought a motion to compel examination of the plaintiff s computer hard drives, contending that the plaintiff s conduct warranted a conclusion that the plaintiff was concealing evidence and misrepresenting facts. Although recognizing a forensic examination may be appropriate upon a showing that the opposing party has deleted electronic evidence, the magistrate judge observed, a party would not be given an unfettered right to conduct its own examination of the opposing party's computers. Rather, a protocol would have to be established to protect legitimate privacy, privilege, and safety concerns, and to minimize disruption. The magistrate judge ultimately denied the defendant s motion, noting that the defendant s unsubstantiated accusations of discovery misconduct did not warrant the remedy of a forensic examination. Warner Bros. Records, Inc. v. Souther, 2006 WL (W.D.N.C. June 1, 2006). In a copyright infringement case, the plaintiffs accused the defendant of unlawfully downloading and distributing copyrighted materials through a peer-to-peer, online media distribution system. After the defendant failed to provide electronic copies of her computer s desktop and registry files in 320

321 response to a production request, the court ordered the defendant to bring the computer to an evidentiary hearing. At the hearing, the court permitted the plaintiff s forensic technician to make a mirror image of the defendant s computer in the court s chambers. Issuing a protective order, the court restricted the plaintiffs from using or disclosing any electronic information obtained from the computer that was unrelated to the case. The court also reserved the right to issue Rule 37 sanctions against the defendant after having the opportunity to consider the defendant s computer skills and the reasonableness of her efforts to comply with discovery in light of them. Quotient, Inc. v. Toon, 2005 WL (Md. Cir. Ct. Dec. 23, 2005). In a breach of contract suit, the plaintiff alleged that the defendant, while in plaintiff s employ, provided a former employee access to the plaintiff s computer system so that the former employee could obtain trade secrets and confidential information. In order to preserve potentially relevant evidence on the defendant s personal computer, the plaintiff filed an emergency motion for expedited discovery. The plaintiff offered to pay for a computer expert to make a mirror image of the defendant s computer and stipulated that the contents could be sealed until further court order. In granting the emergency motion, the court found a substantial probability that relevant electronic evidence, including s and instant messages, could be made less accessible to the parties merely by the defendant s normal course of computer use, regardless of his intentions and motive. The court observed, where the unintentional destruction of relevant evidence should be halted when it can be done so in a fashion that is minimally intrusive and where [the other party] is willing to bear the full cost of the process. Citing the Sedona Principles, the court granted the emergency order, finding, in certain circumstances, preservation orders may aid the discovery process, by promoting efficiency and by specifying the parties preservation obligations. The court requested that the defendant s lawyers screen the computer data for privacy, privilege, and relevancy issues before disclosing the contents to the plaintiffs. Liturgical Pubs., Inc. v. Karides, 715 N.W.2d 240 (Wis. App. 2006). Appealing a dismissal of unfair competition and computer theft claims, the appellant claimed the trial court erred in granting summary judgment for the respondents. During discovery, the trial court ordered mirror images of the respondents computers be made; however, inspection of the images was limited to a hash value search and the trial court appointed a referee to assist in the process. When hash value matches were not found, the appellant requested a second inspection to search for specified words, evidence of reformatting, wiping or deleting of files, and other computer activity. As the first inspection yielded nothing, the trial court ruled further discovery would be unreasonable. Ultimately, the trial court found the appellant failed to present evidence establishing the respondents misappropriated computer data. In affirming the trial court s decision, the appellate court concluded the trial court acted within the scope of its discretion in denying [the appellant s] additional request, which essentially amounted to a fishing expedition. Balboa Threadworks, Inc. v. Stucky, 2006 WL (D. Kan. Mar. 24, 2006). Alleging copyright infringement, the plaintiffs sought to mirror image the hard drives of the defendants business and personal computers. The defendants objected to the mirror imaging of any computers not related to the business, claiming the plaintiffs failed to demonstrate how collecting information on these computers would be calculated to lead to the discovery of admissible evidence. In response, the plaintiffs contended that any of the defendants' computers could have been used to download the copyrighted patterns at issue; thus, all of the computers should be mirror imaged in order to preserve any relevant information. The Court found it reasonable to conclude relevant evidence could be found on any of the defendant s computers, noting a personal computer was used to draft a document related to the alleged infringement. Thus, the Court ordered all of Defendants' computers and peripheral equipment, such as ZIP Drives, shall be 321

322 made available for mirror imaging, at Plaintiffs' expense, in accordance with the protocol previously agreed to by the parties. Electrolux Home Prods., Inc. v. Whitesell Corp., 2006 WL (S.D. Ohio Feb. 15, 2006). The respondents, a non-party subpoenaed by the defendant, petitioned for a certificate of interlocutory appeal and sought to stay enforcement of a magistrate s order allowing the defendant to conduct a forensic review of the respondents computer systems. The reviewing magistrate found the issue was not ripe for appeal and the respondents waived any appeal rights by failing to raise the issue in their initial appeal. The court declared the enforcement orders took every measure to protect the respondents because the defendant was bearing discovery costs and discovery was to be conducted on an attorneys-eyes-only basis. The court also noted the attorney-client privilege was not compromised because the respondents' counsel would have access to the master data and an opportunity to create a privilege log. The reviewing magistrate stated, Respondents have complained throughout this proceeding of the burden being imposed on them. Instead of lessening that burden by cooperating in discovery, they have fought a Stalingrad defense costing untold thousands of dollars in attorney fees and providing increased evidence that they have something to hide. AutoNation, Inc. v. Hatfield, 2006 WL (Fla.Cir.Ct. Jan. 4, 2006). In a case involving a trade secret theft action, the plaintiff sought, and the court issued, an injunction against the defendant. The injunction required the defendant to return hard copy files, electronic files, computer disks and other computer storage media relating to the plaintiff s business. In addition, the court ordered a third party to make her personal computer available to the plaintiff for forensic examination by an expert. The expert was to determine whether the plaintiff s material existed on the computer and if s the defendant had sent to the third party s address were forwarded, altered or used. The court permitted the expert to copy any of the plaintiff s material on the computer and then delete all such material from the computer. Finally, the court authorized the defendant and the third party to have an independent forensic expert in attendance at the inspection. Liggett v. Rumsfeld, 2005 WL (E.D.Va. Aug. 29, 2005). In an action for employment discrimination on the basis of race and for unlawful retaliation, the plaintiff sought, inter alia, an adverse inference instruction for evidence spoliation. In response, the defendant filed a motion for summary judgment on the grounds that a genuine issue of material fact did not exist. Specifically, the plaintiff, a former information technology specialist with the Defense Logistics Agency ( DLA ), claimed the DLA failed to preserve his computer hard drive. The DLA did not image the plaintiff s hard drive although it claimed the plaintiff had used the computer to view pornographic Web sites. The court noted the DLA should have preserved or imaged the hard drive of [the plaintiff s] computer as evidence, however, DLA's failure to do so does not in and of itself suggest fraud or fabrication of evidence. In addition, the court noted it was undisputed that the plaintiff s activity was brought to his supervisor s attention in an unrelated matter. His supervisors neither instigated the computer investigation nor examined the computer themselves. Thus, the court denied the plaintiff s request for an adverse inference instruction and granted summary judgment in favor of the defendants. The court concluded the plaintiff did not raise a genuine issue of fact about whether the government's investigation of the misuse of his computer and subsequent failure to preserve the computer hard drive was based on race or retaliation. United States v. Bass, 411 F.3d 1198 (10th Cir. 2005). The defendant appealed a conviction of five counts of knowing possession of child pornography on the grounds the evidence was insufficient to support the convictions. At trial, the defendant argued he did not know the images were automatically saved to the computer. However, he admitted he attempted to remove child pornography from the computer using two software programs, History Kill and Window Washer. 322

323 Based on this admission, the appellate court found sufficient evidence existed to support the convictions. The defendant also challenged the sufficiency of his indictments, stating they were deficient because they identified the images as bmp files rather than jpeg files (which actually existed on the computer). The court also rejected this argument and declared [t]he images identified in [the defendant s] indictment indisputably came from his computer. The court noted the file type identification change resulted from the forensic examiner s software but was numerically identical to what existed in the defendant s computer. Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y.Sup. 2005). Claiming the defendant had a history of past fraudulent conduct, the plaintiff, in a divorce proceeding, sought permission for her computer forensic experts to impound, clone and inspect the computer servers, hard drives, individual workstation P.C., laptop and other items containing digital data from the defendant. The plaintiff also requested the defendant pay attorney fees and computer forensic expert costs. In response, the defendant stated the request was overbroad, intrusive and burdensome. He also declared he had no confidence in the plaintiff s ability to safeguard his data based on the plaintiff s history of reckless and careless data handling. The court ordered both parties forensic experts, as well as a court-appointed referee, to meet at the data collection locations. The court ordered that the plaintiff s expert would then copy the hard drives and immediately turn them over to the referee. After all of the drives were copied, the experts and referee would examine the hard drives and both parties would receive hard copies of relevant business records. The referee would maintain control over the hard drive images until the case closed. The court also ordered the plaintiff to bear production costs and each party to bear the costs of their own experts. DirecTV, Inc. v. Borow, 2005 WL (N.D.Ill. Jan. 6, 2005). The plaintiff brought a motion for summary judgment, claiming the defendant used the plaintiff s satellite television signal without authorization and then spoliated evidence of the unauthorized use. The court had previously awarded sanctions against the defendant for deliberately destroying evidence by using Evidence Eliminator, a software wiping utility program, to erase electronic evidence requested by the plaintiff. The plaintiff s computer forensic expert examined the computer and recovered some of the deleted files, including programs used by satellite pirates to intercept the plaintiff s encrypted signal and files listing the name of piracy websites the defendant visited. Other files were permanently deleted. The defendant argued somebody else was responsible for these actions, even though he declared the computer remained in his exclusive possession. Granting the plaintiff s summary judgment motion, the court noted, [t]he fact that [the defendant] deleted certain files on his computer only five weeks after the start of this litigation creates an inference that he destroyed evidence that would have been harmful to his defense. Hypro, LLC v. Reser, 2004 WL (D.Minn. Dec. 10, 2004). Alleging breach of various employment and confidentiality agreements and conspiracy to misappropriate trade secrets, the plaintiff filed a motion to preserve and protect evidence. The plaintiff claimed the defendant installed Incinerate, a software wiping utility, on his company laptop that deleted 94 megabytes of information, and returned the laptop without mentioning the deleted files. The plaintiff informed the court that it had made a backup copy of all of the documents on the laptop prior to the defendant s actions, and a comparison of the backup copy with the returned laptop revealed the defendant had deleted documents relating to his involvement in the activities at issue. Based on the plaintiff s allegations, the court ordered all parties to preserve and not erase, alter, modify, or destroy any evidence, including and electronic documents. United States v. Gordon, 393 F.3d 1044 (9th Cir. 2004). After discovering missing stock shares, an employer suspected embezzlement and requested the defendant s laptop computer for examination. The employer specifically told the defendant not to delete anything from the hard 323

324 drive. A computer forensic analysis revealed the defendant attempted to overwrite files on the computer by running Evidence Eliminator, a software wiping program, at least five times the night before he turned over the computer. The defendant was convicted of embezzlement and ordered to pay restitution, including reimbursing the employer for a portion of the investigation costs. On appeal, the defendant argued the trial court should not have awarded the employer investigation costs, including the costs of the forensic examination. The appellate court rejected this argument and affirmed the district court s award, noting the defendant purposefully covered his tracks as he concealed his numerous acts of wrongdoing from [his employer] over a period of years. As the victim, [the employer] cannot be faulted for making a concerted effort to pick up his trail and identify all the assets he took amid everything he worked on. People v. Superior Court, 2004 WL (Cal. Ct. App. June 29, 2004). In a case arising from a fraud and grand theft investigation, the defendant was accused of creating false evidence when served with a federal subpoena that required him to produce certain documents. The false documents included an inaccurate billing statement and five letters pertaining to future meetings. A computer forensics investigation of the defendant s computer revealed that the letters were actually created after the future meetings were set to occur. In addition, the billing statement was created within an hour of the letters. The trial court held that this evidence was insufficient to show that the defendant created the documents after he found out about the audit. On appeal, the government argued that because that the defendant s fellow director knew about the audit the day before the defendant created the documents, a fact finder could reasonably infer that the defendant created the backdated letters in response to the audit. Determining that the evidence supported the government s argument, the appellate court reversed the trial court s decision and declared that a reasonable person could conclude that the defendant was aware of the audit when he created the backdated documents. Campbell v. General Dynamics Gov t Sys. Corp., 321 F.Supp.2d 142 (D.Mass 2004). In an employment discrimination suit brought by a former employee, the employer moved to compel arbitration based upon a mandatory company arbitration policy. The employer sent the policy to the employee via a mass containing two links to the policy and did not require any further action from its employees regarding the policy. In response to the employer s motion, the employee claimed that he received a large volume of mass company s daily and that he could not specifically remember the discussing the arbitration policy. Although the employer submitted an tracking log indicating the time and date that the employee opened the , the employer could not prove that the employee had actually read the or clicked on the links. In denying the employer s motion, the court determined that the mass did not constitute sufficient notification about the arbitration policy. The court further admonished the employer for not taking "the incredibly simple and inexpensive step of configuring their system to log when and if employees clicked on the links to the flyer or the handbook." People v. Dominguez, 2004 WL (Cal. Ct. App. May 13, 2004). In a child pornography prosecution case, the State examined the defendant s computer for illegal material. The prosecution s computer forensic expert recovered 45 child pornography images, deleted from the computer s active memory, and 20 deleted favorites folders, which marked prior visits to child pornography Web sites. The expert also testified that he discovered child pornography cookie files, files designed to make return visits to a Web site faster. In response, the defendant noted, inter alia, that, because the evidence was located in his computer s inactive memory and could not be recovered without the use of specialized computer programs, it was insufficient evidence to support the conviction. In rejecting the defendant s argument, the court declared that [t]he fact that the evidence of that possession was the result of a forensic examination of the inactive memory of 324

325 his computer is meaningless. As such, the court determined that the evidence supported the defendant s conviction for possession of child pornography. LeJeune v. Coin Acceptors, Inc., 849 A.2d 451 (Md. 2004). In a case involving the violation of a state trade secrets act, an employer alleged that a former employee copied proprietary electronic documents from his work laptop to a compact disc (CD), shortly before he went to work for a competitor. The employee stated that, for the sake of simplicity and because he did not know how to save individual files onto a CD, he had transferred his entire My Documents folder, which contained personal files such as his wedding photographs, and inadvertently captured some of his former employer s confidential business documents. The employer s computer forensics expert refuted the employee s claims, testifying that a file, which was not contained in the My Documents folder, was also copied to the CD. The expert also determined that the employee had attempted to hide the document transfer by deleting information about the downloads from the laptop. Based on this evidence, the appellate court affirmed the lower court s finding that the evidence supported a finding of trade secret misappropriation. Ermolaou v. Flipside, Inc., 2004 WL (S.D.N.Y. Mar. 15, 2004). The defendant, an operator of an internet lottery game, moved for summary judgment on a breach of contract claim filed by a lottery player. Contending that a genuine issue of material fact existed, the plaintiff argued that there was a dispute about the creation, transmission, and receipt of two notification e- mails sent to her by the defendant. In support of her argument, the plaintiff submitted affidavits and documents that attempted to show a conflicting record regarding the date and time stamping procedures for the s. The defendant contended that the notification received by the plaintiff had no relation to the official winning numbers because the time stamp showed that it had been sent several hours before the defendant selected the winning lottery numbers. In granting summary judgment for the defendant, the court noted that even if it were correct that all received by her bears the date and time it is received by her account that fact would undermine her case rather than [support] it. Hickman v. Virginia Commonwealth Univ., 2004 WL (Va. Cir. Ct. Mar. 5, 2004). The defendant terminated the plaintiff, a secretary, from employment with the state university for the unauthorized removal of state records, state property, and the property of other persons and breaches of confidentiality. Without permission from the university president or anyone else, the plaintiff forwarded s that were addressed to the president to individuals outside of the president s office. The plaintiff argued her actions did not warrant termination because one cannot remove . The court rejected the plaintiff s argument asserting that [w]hile it is true that the original s remained on the office computer after they were sent by the appellant to others, copies of those s were removed when appellant forwarded them out of the office. Moreover, even if the s were not technically copied or removed, the court declared that the plaintiff breached confidentiality. As such, the court affirmed the hearing officer s determination that the defendant did not act inappropriately in terminating the plaintiff s employment. State v. Voorheis, 2004 WL (Vt. Feb. 13, 2004). The appellate court affirmed the trial court s finding that instant messaging text was sufficient evidence to support the defendant s conviction of incitement and attempt of use of a child in a sexual performance. The State introduced evidence recovered from a computer forensic examination of the computer system and floppy disks taken from the child s home. The computer forensic expert recovered text from instant messaging conversations in which the defendant discussed with the child s mother a plan to have a lewd photo shoot. At trial, the expert noted that instant messaging is not usually saved on a computer and that saving it to floppy disks required concentrated effort. Based on the instant messaging evidence, the jury found the defendant guilty. The defendant argued that the instant 325

326 messaging text was meager evidence of guilt, since the text had allegedly been altered and edited. The court rejected this claim finding that the retrieved electronic conversations, together with witness testimony, offered ample evidence to support the jury s findings. Kupper v. State, 2004 WL (Tex. App. Jan. 14, 2004). The defendant appealed his sexual assault conviction, challenging the admissibility of messages retrieved from the defendant s deleted files on his work computer and an message and a photograph retrieved from the temporary internet files on his work computer. At trial, a police detective trained in computer forensics testified that she imaged the defendant s home and work computers and engaged in a computer forensic investigation to locate the evidence in question against the defendant. The appellate court rejected the defendant s arguments and concluded that the police detective s testimony established that the appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances, authenticated the computer evidence. The court further determined that there was no evidence raising chain of custody issues. Commonwealth v. Simone, 2003 WL (Va. Cir. Ct. Nov. 12, 2003), rev d, 2005 WL (Va. App. Ct. Mar. 15, 2005). The trial court determined that the defendant knowingly possessed three sexually explicit images of juveniles found in the cache of his computer even though the images could have appeared on the defendant s computer screen as pop-ups for websites other than ones intentionally accessed or manually downloaded by the defendant. A computer forensic investigator recovered the sexually explicit images from the computer's directory cache, also known as temporary internet files. The investigator testified that when accessing a website, a computer operator normally cannot stop these images from being placed in the cache; however, images must actually appear on the computer screen before they are automatically placed in the cache. The trial court determined the defendant exhibited knowing possession of the three child pornography images contained in his computer s cache/temporary Internet files. The appellate court reversed, finding the defendant did not have sufficient dominion and control over the computer to conclude he possessed the images contained on the computer on the date in question. The Carlton Group v. Tobin, 2003 WL (S.D.N.Y. July 31, 2003). The plaintiff, a financial services company, brought suit against several defendants claiming that the defendants deleted files from the plaintiff s computers, conspired to steal confidential and proprietary information from its computer network, and used that information to compete unlawfully with the plaintiff. One group of defendants, Mission Capital, is a company that competes directly with the plaintiff s company, and the individual Mission Capital defendants were formerly employed by the plaintiff. The other group of defendants, PDP Capital, is an investment advisor and fund management company and does not compete with the plaintiff or Mission Capital. All parties in the suit maintain offices in the same business suite, and all tenants of this office suite share a communication switch and data transmission line which connect the tenants' computers to the Internet. As such, all the computers in the suite constitute a network, although the tenants do not have access to each other's computers. PDP defendants sought Rule 11 sanctions against the plaintiff and plaintiff s counsel for filing suit against them lacking in evidentiary support. The plaintiff maintains that its allegations against PDP were objectively reasonable based upon information from computer forensic experts that PDP had deliberately established a link between computer systems to move data back and forth between the plaintiff s computer network and the PDP computer. Denying the PDP defendants motion for Rule 11 sanctions, the court held that the plaintiff made a substantial pre-filing inquiry that gave them a reasonable basis for believing that PDP defendants conspired with the Mission defendants. 326

327 Four Seasons Hotels and Resorts v. Consorcio Barr, 267 F. Supp. 2d 1268 (S.D.Fla. 2003), aff d in part and rev d in part, 138 Fed.Appx. 297 (11th Cir. 2005). The plaintiff brought an action against the defendant licensee alleging, among other things, violations of the Computer Fraud and Abuse Act, Electronic Communications Privacy Act, and Uniform Trade Secrets Act. A computer forensic investigation revealed that the defendant accessed the plaintiff s computer network, downloaded confidential data onto backup tapes, fabricated electronic evidence, and deleted files and overwrote data prior to his computer being turned over for inspection to the plaintiff. The court held that the defendant acquired the plaintiff s confidential customer information through improper means, namely, by theft and by espionage through electronic means. The court issued a judgment for the plaintiff and ordered monetary damages, among other relief. People v. Carratu, 755 N.Y.S.2d 800 (N.Y. Sup. Ct. 2003). The defendant moved to suppress computer evidence seized from his home and subsequently searched by the police department s computer forensic examiners. The defendant claimed that the search warrants and supporting affidavits limited the search to documentary evidence relating to his illegal cable box operation and thus, the forensic examiner violated the defendant s Fourth Amendment rights upon inspection of non-textual files with folder names clearly relating to other illegal activity. Granting the suppression motion, in part, the court stated, In view of the Fourth Amendment's particularity requirement, a warrant authorizing a search of the text files of a computer for documentary evidence pertaining to a specific crime will not authorize a search of image files containing evidence of other criminal activity. United States v. Sanchez, 59 M.J. 566 (A.F. Ct. Crim. App. 2003), aff d in part and rev d in part, 60 M.J. 329 (A.F. Ct. Crim. App. 2004) aff d by 61 M.J. 330 (U.S. Ct. App. A.F. 2005). A federal appellate military judge determined that the government produced sufficient evidence to prove that the defendant knowingly possessed child pornography images stored in his computer s temporary Internet files. After making a mirror image of the computer s hard drive, investigators used a software program called "Carve This" to uncover remnants of files that were overwritten or deleted from the hard drive. The program found that the presence of the images on the hard drive was consistent with someone viewing them on the Internet and the images then being automatically saved to the hard drive by the web browser. Combining this with evidence of the defendant s subscriptions to nude teen websites, the court determined that the evidence supported the allegation that the defendant knowingly possessed the pornographic images. United States v. Triumph Capital Group, 211 F.R.D. 31 (D.Conn. 2002). In order to prevent spoliation of evidence in a public corporation case, the government sought and obtained a search warrant to search and seize a laptop computer at issue. The warrant did not limit the search to any particular area of the hard drive. However, it did limit the government to search for and seize only certain evidence relating specifically to the charges and to follow detailed protocols to avoid revealing any privileged information. So that the data would not be altered, the government made mirror images of the hard drive and then proceeded with the computer forensic investigation. The defendants argued that this mirroring amounted to a search and seizure of the entire hard drive and moved to suppress all evidence from the laptop. The court determined that although the search warrant limited the scope of the information that investigators could search for, technical realities required the government to make complete mirror images of the hard drive. Furthermore, the court ruled that copying a file does not necessarily constitute seizure of that file and that examining a file more than once does not constitute multiple searches under the Fourth Amendment. United States v. Al-Marri, 230 F. Supp.2d 535 (S.D.N.Y. 2002). In the wake of the September 11th attacks, the FBI visited the defendant s home perusing tips of the defendant s allegedly 327

328 suspicious activity. The FBI agents obtained the defendant s consent to search his home and, with his affirmative consent and cooperation, seized his laptop computer, disks, and CDs for further investigation. Investigation of the computer hardware revealed evidence of credit card fraud. The defendant moved to suppress the computer evidence, arguing that even if he validly consented to a search of his home, that consent did not encompass the contents of his computer. The court denied the motion to suppress and ruled that the FBI s lawful search of the defendant s home encompassed the right to search the computer as a closed container. State v. Townsend, 57 P.3d 255 (Wash. 2002) (Bridge, J. concurring). The principal issue the court resolved was whether a police officer violated a provision in Washington's privacy act when he saved and printed and real time client-to-client ICQ messages between the defendant and a fictitious child. The court upheld the conviction and held that the act was not violated. In a concurring opinion, one judge further addressed the unique aspects of electronically created and stored . Technically, messages are permanently recorded since most programs keep copies of every message a user ever wrote, every message the user ever received, and every message the user deleted. Although some services may offer the possibility of shredding an message, arguably the equivalent of actually deleting it, the file may still be retrievable using certain software. A deleted file is really not a deleted file, it is merely organized differently. Moench v. Red River Basin Board, 2002 WL (Minn. Ct. App. Sept. 24, 2002). The plaintiff was forced to resign from his executive director position after being confronted with allegations that pornographic images were found on his computer. The plaintiff s employer used a computer forensic expert to investigate the pornographic material stored in the cache file of the plaintiff s computer. Given that the plaintiff s employment was terminated for cause, the Commissioner of Economic Security refused to issue unemployment benefits. The appellate court reversed the denial of benefits stating that the evidence in the record did not support the finding that the plaintiff intentionally downloaded or stored any pornographic material on his computer. United States v. Bach, 310 F.3d 1063 (8th Cir. 2002). In a criminal prosecution for possession of child pornography, Yahoo! technicians retrieved, pursuant to a search warrant, all information from the defendant s account. The lower court ruled that the seizure of the s by Yahoo! was unlawful because police were not present when the defendant s account was searched. Reversing the lower court s opinion, the appellate court held that Yahoo! s search of the defendant s s without a police officer present was reasonable under the Fourth Amendment and did not violate the defendant's privacy rights. United States v. Tucker, 150 F. Supp.2d 1263 (D. Utah 2001). The defendant was found guilty of knowing possession of child pornography. The conviction was largely supported by computer forensic evidence found in the form of deleted Internet cache files that were saved to the defendant s hard drive when he viewed the various websites. See also United States v. Tucker, 305 F.3d th Cir. 2002). State v. Guthrie, 627 N.W.2d 401 (S.D. 2001). In a criminal prosecution for murder, a computer specialist conducted several forensic searches on a computer used by the defendant, finding that the computer had been used to conduct numerous Internet searches on subjects related to the incidents surrounding the murder. In addition, the forensic analysis was able to reveal that a computer printed suicide note, offered to exculpate the defendant, was created several months after the victim s death. State v. Guthrie, 2002 WL (S.D. Nov. 20, 2002). Anticipating that the State would not have time to thoroughly examine the evidence against the defendant for murdering his wife, Defense counsel failed to disclose the victim s purported computerized suicide note during the discovery period. The appellate court affirmed the trial court s finding that defense 328

329 counsel acted in bad faith by holding this evidence back from discovery. The appellate court also held that the fees of the State s computer forensic expert were reasonable because the expert was highly qualified in computer forensics. Adobe Sys., Inc. v. Sun South Prod., Inc., 187 F.R.D. 636 (S.D. Cal. 1999). In a computer piracy suit, the court denied plaintiff s ex parte application for a temporary restraining order. The court based its decision on the fact that it is more difficult to erase evidence that is magnetically encoded on a computer hard disk than it is to physically destroy floppy disks, compact discs, invoices, and other tangible forms of evidence. Manual or automated deletion of that software may remove superficial indicia, such as its icons or presence in the user's application menu. However, telltale traces of a previous installation remain, such as abandoned subdirectories, libraries, information in system files, and registry keys Even if an infringer managed to delete every file associated with plaintiffs' software, the plaintiff could still recover many of those files since the operating system does not actually erase the files, but merely marks the space consumed by the files as free for use by other files. Cerruti 1881 S.A. v. Cerruti Inc., 169 F.R.D. 573 (S.D.N.Y. 1996). The plaintiff argued that the defendant fabricated computer records in an attempt to demonstrate sales for trademarked clothing items. The defendant claimed the records were inaccurate as a result of a defect that occurred in the process of copying the data from his hard drive to the archival media. A computer forensics expert compared the data on the hard drive to the archived records that the defendant produced and found that the records produced matched perfectly. Contrary to the defendant s claim, the expert explained that it was highly unlikely that the data became corrupt as a result of the process used to copy the data. Rather, the data on the archival media had been manually manipulated. Based on the expert s testimony, the court granted judgment in favor of the plaintiff. Byrne v. Byrne, 650 N.Y.S.2d 499 (N.Y. Sup. Ct. 1996). In a divorce proceeding, the wife sought access to her husband s computer, which husband used for both business and personal purposes even though computer was provided by husband s employer. The wife was awarded such access to search the computer for information about the couple s finances and marital assets. Admissibility People v. Kucharski, 2013 WL (Ill. App. 2 nd Dist. Mar. 29, 2013). In this harassment through electronic communications case, the defendant allegedly posted lewd comments and offensive remarks on the victims MySpace account without the victim s consent before changing her password. The defendant contested that the evidence was insufficient to show that he was responsible for the conduct. The court looked to the circumstantial evidence presented in the case including records [that] showed that a computer from the defendant s home had accessed the victim s Myspace page and that only [the victim] and the defendant knew the password. Moreover, the victim testified that after her relationship with the defendant ended, they were no longer on good terms although she attempted to change her password, every time a password change was made, the defendant was notified by of the new password. On the whole, the court found that the circumstantial evidence was sufficient to support the electronic harassment conviction. Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. Feb 8, 2012). In this appeal of a murder conviction, the defendant alleged that various postings from two MySpace accounts registered under the defendant s address were inadmissible because the State could not establish that he was the author. Extending the basic rationale used to authenticate s, chat room dialogues and text messages, the court looked at whether the MySpace postings were sufficiently 329

330 linked such that a reasonable juror could have found that they were created and maintained by the defendant. The State pointed to the substance of the postings which made reference to the deceased, the defendant s gang, the shooting, the State s key witness and further contained numerous photos of the defendant s unique tattoos in an attempt to meet this threshold. Affirming the lower court s decision, the court found that this circumstantial evidence, taken as a whole, sufficiently established that the MySpace pages were created and maintained by the defendant. Griffin v. State, 2011 WL (Md. Apr. 28, 2011). In this criminal case, the state's highest court granted the convicted defendant's petition for a writ of certiorari to review the trial judge's decision (affirmed on appeal) to admit electronic evidence obtained from a MySpace profile. Noting that the required level of authentication required for social networking site evidence was a question of first impression, the court held that the potential for manipulation in this context required greater scrutiny of the foundational authentication requirements than that of traditional records. Because the authentication of key electronic evidence based upon a picture, birth date and residence location alone provided an inadequate foundation, the court found the trial court committed reversible error, overturned the conviction and remanded for a new trial. However, the court suggested that testimony from the purported creator, a search of her computer or information obtained directly from the social networking website could suffice to authenticate electronic evidence. Williams v. Long, 2008 WL (D.Md. Nov. 7, 2008). In this employment compensation dispute, the plaintiffs filed for conditional class action certification and submitted several affidavits and printed webpages from official websites, consisting of case search results and a copy of a similar complaint in support of the motion. Citing Lorraine v. Markel Am. Ins. Co., Magistrate Judge Paul W. Grimm stated that accepting electronically stored information as evidence implicates a series of evidentiary hurdles that must be cleared, including relevancy and authenticity. Magistrate Judge Grimm held that since the webpages were printed from government websites, they were self-authenticating, official publications, and thus clear the authentication hurdle. Finding the webpages authentic and relevant to the issue of class certification, the court turned to the issue of hearsay. Finding that the requirements for the hearsay exception for public records were met, the court granted the plaintiffs motion to conditionally certify the class. United States v. Crist, 2008 WL (M.D.Pa. Oct. 22, 2008). In this criminal action, the defendant filed a motion to suppress evidence recovered from his computer, claiming its search was warrantless, in violation of his Fourth Amendment rights. The defendant did not consent to the search of his computer; rather he reported it stolen upon learning that it was given away. However, upon receipt, the forensic examiner hashed the drive then took a forensic image. Then, the examiner hashed the image, later comparing the hash value to files known to contain pornographic images. The court determined that subjecting the computer to a hash value analysis constituted a search, reasoning that instead of the hard drive being analogous to an individual item, it constitutes multiple items as it is comprised of many platters with multiple data storage units. The court accordingly granted the defendant s motion to suppress the evidence obtained from the forensic search of his computer. United States v. Arnold, 2008 WL (Cal. July 10, 2008). In this suit charging the defendant with transporting child pornography, the government appealed the district court s ruling granting the defendant s motion to suppress evidence seized from his laptop computer by Customs and Border Patrol officers. The defendant argued that laptops were more analogous to a home and the human mind rather than closed containers, because of the computer s ability to record ideas, e- mails, chats and web habits. Conversely, the government argued reasonable suspicion was not required under the Fourth Amendment when dealing with border searches due to, a sovereign s 330

331 inherent authority to protect its territorial integrity. Finding the district court s decision erroneous, the court held that reasonable, particularized suspicion is not required for customs officials to search a laptop or other personal electronic storage devices at the border. United States v. Giberson, 527 F.3d 882 (9th Cir. 2008). In this criminal conviction appeal, the appellant argued that the trial court erred in denying his motion to suppress incriminating evidence found on his computer. The computer was seized via a search warrant for documents and records relating to child support obligation failures, and was forensically searched under a warrant for evidence of fraudulent activities. The appellant argued that the general principle that a search warrant for materials authorizes the search of objects that may contain those materials should not apply to computers because computers contain an enormous volume of data, likely contain irrelevant personal data, and likely contain First Amendment-protected data. Also, the appellant argued that the forensic search of his computer should have been limited to files likely to contain documents relevant to the search warrant s purpose. Finding the appellant s technology-based arguments to be unpersuasive, the court held that a search warrant describing a document reasonably likely to be contained on a computer authorizes the seizure of that computer. The court also cited precedent which reasoned that a forensic search methodology limited to certain files is unreasonable since computer records are extremely susceptible to tampering, hiding or destruction. Subsequently, the court upheld the trial court s decision not to suppress the computer evidence and the appellant s conviction. Pederson v. Preston, 2008 WL (D.D.C. June 11, 2008). In this employment discrimination litigation, the plaintiff filed a motion to compel discovery arguing that the defendant s responses to a number of interrogatories were insufficient and the defendant improperly asserted attorney-client privilege. The defendant objected arguing that the plaintiff s production requests were vague, overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. The defendant also defended its assertion of attorney-client and work-product privilege by noting that the plaintiff had not specifically objected to any claim of privilege provided in the defendant s privilege log. After analyzing each disputed interrogatory for relevancy and undue burden, the court granted the motion in part and denied in part. The court also agreed with the defendant s privilege argument, holding that the defendant s attorney-client privilege assertion would be sustained absent evidence that it was made in bad faith. Ex parte Vulcan Materials Co., 2008 WL (Ala. April 25, 2008). In this breach of contract litigation, the defendant sought review of an order regarding permissible post-trial discovery in response to a punitive damages award. The defendant claimed the trial court exceeded its discretion in denying the motion for a protective order regarding production of circulated within the company. Specifically, the defendant claimed because the sought was created after the case was filed, it was not relevant to the issue of punitive damages and protected by work product doctrine. Relying upon Ex parte Cooper Tire & Rubber Co., So.2d (Ala.2007) and the Fed.R.Civ.P. 26(b)(2)(B), the court directed the trial court to reconsider the defendant s motion for a protective order. In re Subpoena Duces Tecum to AOL, LLC, 2008 WL (E.D.Va. April 18, 2008). In this insurance fraud litigation, the defendant objected to the magistrate judge s order that quashed its subpoena. The subpoena sought production of documents from the non-party witnesses accounts through AOL. The non-party witnesses claimed the subpoena violated the Electronic Communications Privacy Act, imposed an undue burden, and sought s protected by the attorney-client privilege. Determining the statutory language of the Privacy Act does not allow AOL to divulge the contents of the requested electronic communications, the court upheld the magistrate judge s order. Additionally, the court held the subpoena was overbroad and imposed an 331

332 undue burden under Fed.R.Civ.P. 45(c), since it requested all s from a six week period including private information unrelated to the litigation. United States v. King, No (M.D.Ala. Dec. 14, 2007). In this appeal of a conviction for transportation of child pornography, the defendant, a civilian contractor at a United States Air Force base, sought a motion to suppress evidence obtained from his computer hard drive as violating of his fourth amendment right to be free from unreasonable search and seizure. The government obtained evidence from the defendant s hard drive via a shared drive by an airman searching for music files. Upon discovery of the pornographic images, the airman notified a computer specialist who accessed the drive in the same manner. Subsequently, the specialist notified an investigator who obtained a search warrant and seized the defendant s computer. Determining that data saved on a hard drive connected to a network belongs to a network administrator, the court held that the defendant had no legitimate expectation of privacy for files located and accessible via a shared network drive, and therefore denied the defendant s motion to suppress. United States v. Ferguson, 508 F.Supp.2d 7 (D.D.C. Sept. 10, 2007). In this drug trafficking prosecution, the defendant moved to suppress Yahoo! and MSN Hotmail evidence obtained by the government, which was seized pursuant to the magistrate judge s order under the Stored Communications Act (SCA). The defendant challenged the SCA s constitutionality, and in turn, the government argued that the constitutionality of the SCA had no bearing on whether the evidence warranted suppression. Denying the defendant s motion to suppress, the court found that the SCA does not provide a suppression remedy and concluded that the government s reliance on the SCA was objectively reasonable. United States v. Richardson, 2007 WL (W.D.Pa. Aug. 3, 2007). In a suit alleging possession of child pornography, the defendant motioned the court to suppress evidence obtained from the search of his computer hard drives. The investigators gained entry to the defendant s home under a ruse, claiming they were merely searching for evidence of identity theft. In reality they were investigating the attempted credit card purchase of access to an Internet site containing child pornography from an IP address registered to the defendant at the defendant s home. The defendant offered his consent to image the hard drive of one computer, and allowed investigators to confiscate the other. A forensic expert located numerous child pornography images on the imaged hard drive and confiscated computer. The court held that failure to reveal the object of the investigation was not a violation of the defendant s fourth amendment rights and denied the defendant s motion to suppress. United States v. Jackson, 2007 WL (D. Neb. May 8, 2007). In a criminal case, the defendant filed a motion in limine to exclude evidence of chat room conversations. At the conclusion of each chat room session, an undercover police officer conducting the chat room conversation would cut-and-paste the entire conversation into a word document for later review. However, a computer forensics expert testified that this cut-and-paste method created several errors and that several portions of the defendant s conversations were omitted. The defendant argued the omitted portions of the transcript contained evidence relating directly to his intent and should not be admitted as evidence. The court found that the cut-and-paste document was not admissible evidence at trial because it was not authentic under the Federal Rules of Evidence. The government did not prove the proper foundation to show that the cut-and-paste transcript was a trustworthy source of evidence. Additionally, the court found that the transcript was not the best evidence as required by the Federal Rules of Evidence. Although original duplicate documents may be admitted as evidence in lieu of original documents, they still must be an accurate reflection of the original s content. The court found the cut-and-paste document offered by the government could not be proven to be an accurate reflection of the original chat room discussions. 332

333 Lorraine v. Markel Am. Ins. Co., 2007 WL (D. Md. May 4, 2007). In this action, the plaintiffs brought suit to enforce an arbitrator s award determining that damages to their yacht were the result of a lightning strike and motioned the court to award a judgment of $36,000. The defendant s insurer counterclaimed, seeking to enforce part of the arbitrator s award which concluded that damages were limited to $14,100. Both parties filed cross-motions for summary judgment but each party failed to support their motions with admissible evidence as required under the Rules of Evidence. Specifically, both parties offered copies of as parol evidence which were attached as exhibits to the summary judgment motions and not authenticated properly. The magistrate judge dismissed both parties summary judgment motions without prejudice to allow resubmission with proper evidentiary support. The magistrate observed that unauthenticated e- mails are a form of computer generated evidence that pose evidentiary issues. The magistrate stated the admissibility of ESI as evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. He found there were five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence. The five issues may not apply to every exhibit, but the magistrate held that each must be considered. The magistrate held that ESI must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the best evidence, and 5) not unduly prejudicial before it can be found to be admissible evidence. Regarding the five issues, the magistrate found the parties exhibits were relevant to the suit. However, both parties failed to authenticate the exhibits because they simply attached the exhibits and the complete absence of authentication stripped the exhibits of any evidentiary value because the Court could not consider them as evidentiary facts. Additionally, the magistrate found that the parties failed to address the last three hurdles of admissibility. They did not resolve any potential hearsay issues that were likely to arise, nor did they comply with the original writing requirement or demonstrate the absence of unfair prejudice. After explaining the legal standard for each step of ESI admissibility, the magistrate stated it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on the first try. People v. Stone, 2006 WL (Cal. App. 5th Dist. Oct. 12, 2006). In a murder case, the defendant motioned the court to exclude the discovery of documents found on his laptop by a computer forensics expert as inadmissible. The expert discovered certain documents in his investigation where the defendant referred to himself as a hitman for hire. The defendant argued that such documents were inadmissible because the prejudice of the documents outweighed the probative value. However, the court held the documents authored by the defendant found on his personal laptop computer could be classified as an admission by a party opponent and admissible in trial proceedings if accompanied with proper foundation. U.S. v. Ziegler, 456 F.3d 1138 (9th Cir. 2006). In an appeal from Montana district court, defendant claimed that child pornography and other information found on his workplace computer was protected as private information under the 4th Amendment. Plaintiff argued that a workplace computer is much like a locked desk drawer in an office and that a similar expectation of privacy should follow. However, the government argued that no employee can possibly have an expectation of privacy when the computer and internet access is paid for by the employer and when there is an entire company department dedicated to monitoring employee s internet use. The court held that the defendant could not have an objective expectation of privacy since his employer published and practiced a computer monitoring policy. The court noted that the defendant s personal password protection did not increase privacy expectations. Furthermore, the court stated that if the employer did not have a properly practiced policy in place, than an objective expectation 333

334 of privacy may have existed for defendant. However, the court concluded [s]ocial norms suggest that employees are not entitled to privacy in the use of workplace computers. Quon v. Arch Wireless Op., 445 F.Supp.2d 1116 (C.D. Cal. 2006). In a suit claiming 4th Amendment and federal statutory violations, the court determined that public employees who send text messages through department-issued pagers are protected by the 4th Amendment. The plaintiffs, police department employees, were issued pagers by their employer police department. The department had a loose policy of reviewing the text messages sent on these pagers; however, they did not uniformly implement the policy of reviewing employee s text messages. Plaintiffs argued that reviewing private text messages on department-issued pagers constituted an illegal search under the 4th Amendment and was an unreasonable invasion of privacy. The defendants contended that the pagers were subject to a lesser expectation of privacy since they were owned by the department and department policy of reviewing the messages was adequate notice of a reduced expectation of privacy. The court held that the plaintiff had a reasonable expectation of privacy in his text messages sent to and from his city-issued pager since the police department s policy was to only review employee s text messages if they went over the monthly limit for text messages a policy that was used sparingly. Therefore, the plaintiff could not have reasonably expected his messages to be reviewed for content by his employer absent a policy stating otherwise. Furthermore, the court noted that the defendant s argument that the police department actually owned the pager used to transmit the protected messages was of no merit. Williams v. Sprint/United Mgmt. Co., 2006 WL (D. Kan. July 1, 2006). The court conducted an in camera review of 65 documents inadvertently disclosed by the defendant to the plaintiffs. The court found the documents -- spreadsheets containing statistical information -- were created at the request of the defendant s attorneys for the purpose of obtaining legal advice, and were protected by attorney-client privilege. In reaching its conclusion, the court considered several s establishing the documents had been ed directly to the defendant s counsel. In ruling the privilege had not been waived by the defendant s inadvertent disclosure, the court analyzed five factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of discovery; (4) the extent of disclosure; and (5) the overriding issue of fairness. To prevent inadvertent disclosure, the defendant converted the documents into TIFF images, allowed attorneys to review them on a computer screen, and implemented document production software to label privileged documents for inclusion within the privilege log. Citing the Advisory Committee s comments to the proposed amendments to FRCP Rule 26(f), the court considered the added volume, expense and time required to sift through electronically stored information in determining that the defendant s efforts to prevent disclosure were reasonable. In addition, since the defendant had immediately taken steps to secure the return of the spreadsheets after learning the documents had been inadvertently disclosed, the court ruled the privilege not waived and ordered the documents be returned to the defendant. Shank v. Kitsap County, 2005 WL (W.D.Wash. Aug. 30, 2005). In an employment related suit, the defendants filed a motion for sanctions alleging the plaintiff violated a court order and withheld discovery. In its request for interrogatories and production of documents, the defendants specifically defined a document as including "electronic recordings" and "tape recordings." After the plaintiff failed to provide the requested documents and information, the defendants sought to compel discovery. The court granted the motion and ordered the plaintiff to comply, to which the plaintiff then submitted answers to the interrogatories. During a deposition a month later, the plaintiff revealed it failed to produce tape and electronic recordings falling within the scope of the defendants' discovery requests. Although the plaintiff produced four electronic recordings shortly thereafter, the defendants sought Fed. R. Civ. P. 37 sanctions and requested 334

335 dismissal of three of the plaintiff s claims. Alternatively, the defendants sought an order prohibiting the plaintiff from introducing the recordings at trial. Defending the late production, the plaintiff claimed he did not initially turn over the recordings because they were stored on his computer in a format that could not be easily copied. The court found this a wholly unacceptable basis for failing to comply with discovery and determined the recordings would be excluded from evidence at trial. The court stated, [m]uch of present day discovery is contained on computers. It is both parties' duty to comply with the rules of discovery and court orders despite technical difficulties. In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005). The defendant appealed from an assault conviction, asserting the trial court erred in admitting improperly authenticated computerized instant messages into evidence. The defendant argued the messages should have been authenticated by either the source Internet Service Provider or computer forensic expert testimony. Rejecting this argument, the appellate court declared the circumstantial evidence properly rendered the instant messages admissible. The court noted the defendant s argument would require it to create a whole new body of law just to deal with s or instant messages. The court further stated it found no justification for constructing unique rules for admissibility of electronic communications such as instant messages. In this case, the instant messages were properly authenticated based on the following factual circumstances: the defendant referred to himself by name, his testimony mirrored some of the comments in the instant messages, and he referenced one of the instant messages in a conversation with school authorities. United States v. Hamilton, 413 F.3d 1138 (10th Cir. 2005). The defendant appealed from a conviction for transporting child pornography in interstate commerce in violation of federal law. At trial, the government introduced 44 child pornography images the defendant allegedly uploaded to a newsgroup. The images contained computer-generated header information (also known as metadata) linking the defendant to the images. On appeal, the defendant argued the headers constituted hearsay and should have been excluded from evidence. The appellate court rejected this argument and found the district court was correct in finding the headers did not amount to hearsay. The court reasoned the information did not fall within the Rule 801(c) definition of hearsay because the header information was automatically generated by the computer hosting the newsgroup each time Hamilton uploaded a pornographic image to the newsgroup. People v. Downin, 828 N.E.2d 341 (Ill. App. Ct. 2005). The defendant appealed a conviction for aggravated criminal sexual abuse, arguing that the trial court erred in admitting s containing admissions of guilt. Specifically, the defendant contended the s were not properly authenticated, making them inadmissible for lack of proper foundation. He further stated that without any evidence of an Internet provider address linking the to himself, there was no way to verify that the victim did not falsify the s. The appellate court found the trial court did not abuse its discretion and concluded that the victim s testimony and other circumstantial evidence sufficiently established authenticity of the s. Tadros v. Tripodi, 866 A.2d 610 (Conn. App. Ct. 2005). The trial court determined the defendant, a physician, and his wife had secretly stolen over $875,000 from a medical corporation in which the defendant practiced and his wife managed the billing and other administrative matters. While the corporation was in the midst of breaking up, corporate counsel seized the corporation s computer, made a copy of the hard drive, and then returned the computer to the office. When counsel seized the computer a second time, he discovered that the physician s wife had deleted over 200 prior computer entries, some of which involved patient balances. The physican s wife was unaware that counsel had made a duplicate of the computer s hard drive during the initial computer seizure. A comparison of that copy with a copy made after the second seizure proved the deletions were made. In admitting evidence of the deletions, the trial court noted that [a]lthough the exact 335

336 economic effect of all of the deletions is not clear, they nonetheless reveal unauthorized tampering with the computer records at a particularly suspect time. On appeal, the court held that the trial court properly admitted evidence of the deletions for the limited purpose of showing that the changes had been made after the computer was initially seized. Bazak Int l Corp. v Tarrant Apparel Group, 378 F.Supp.2d 377 (S.D.N.Y. 2005). The court found an exchange between a textile merchandiser and a seller, regarding a purported agreement to buy jeans, satisfied the New York statute of frauds signature requirement. In reaching its conclusion, the court noted the merchandiser's typed signature appeared at the signatory line of the attached letter, and the letter was typed on merchandiser's company letterhead. State v. Lott, 879 A.2d 1167 (N.H. 2005). The defendant - convicted for using computer services in a manner prohibited by the law appealed an order denying his motion to suppress the instant message evidence that led to his conviction. Specifically, the defendant claimed an undercover detective violated a statute prohibiting interception of telecommunications when he recorded the instant message conversation. While posing as a fictitious child, the detective had engaged in and recorded an instant message conversation with the defendant. The detective had also enabled a Yahoo! message archiving feature that automatically creates a record of the instant message conversation, which he later saved as an electronic document. On appeal, the court found the detective intercepted the defendant's communications but declared the evidence was still admissible. The court determined the defendant, as a matter of law, consented to the recording of the messages because the defendant impliedly knew they were being recorded. The court noted, [l]ike an message and a message left on an answering machine, the recording of the instant message is necessary for the intended recipient of that message to read the message. The court declined to address whether the detective illegally intercepted the instant message communication by enabling the Yahoo! message archiving feature, as the evidence was already properly admitted through the detective s first recording method. State v. Tripp, 168 S.W.3d 667 (Mo. Ct. App. 2005). The defendant appealed a murder, rape and kidnapping conviction, arguing the trial court erred in admitting evidence regarding the contents of his laptop. The defendant alleged, inter alia, the testimony was legally irrelevant and that its prejudicial effect outweighed any probative value it might have had. At trial, the State s computer forensic expert testified that a significant amount of unallocated space remained on the hard drive and that the space was filled with zeros. The expert also uncovered a reference to wipinfo.exe in the computer s swap file on the hard drive. Based on these factors, the expert concluded that a wiping utility was used on the computer and that 160 files had been accessed, modified or deleted the day the victim disappeared. The defendant s computer expert argued it was impossible to distinguish between a hard drive on which a wiping utility had been used and a hard drive on which the unallocated space was in the same condition as it was when the manufacturer delivered it. On appeal, the court noted the State's position would be stronger if there had been any testimony or other evidence that suggested that the laptop ever had anything on it that would connect [the defendant] with the offenses for which he was being tried. Despite this, the court affirmed the trial court s judgment, stating that admission of the testimony and evidence did not constitute plain error as the state only made a passing reference to the free space on the computer and the evidence of a wiping utility. People v. Schilke, 2005 WL (Mich. Ct. App. May 3, 2005). The defendant appealed a conviction for unauthorized access to her former employer s computer. The defendant argued the trial court should not have admitted evidence relating to the employer s cost of repairing the network and the amount of lost revenue arising out of the company s inability to conduct business due to the unavailability of the network. On appeal, the court determined the evidence was properly 336

337 admitted because it was relevant in determining the amount of damage the company sustained as a result of the defendant s actions. The evidence further rebutted the defendant s assertion that her actions should have been easily correctable, and should not have caused very much damage. Evans v. Evans, 610 S.E.2d 264 (N.C. Ct. App. 2005). In a domestic relations dispute, the defendant contended the trial court erred in admitting sexually explicit s. The defendant argued the s were illegally intercepted pursuant to a federal statute prohibiting the disclosure or use of any electronic communication that was intercepted in violation of the Electronic Communications Privacy Act (ECPA). The court rejected her argument, noting the ECPA interceptions must occur contemporaneously with transmission. The court further held that the e- mails did not fall within that requirement because they were stored on, and recovered from, the hard drive of the family computer rather than intercepted at the time of transmission. State v. Levie, 695 N.W.2d 619 (Minn. Ct. App. 2005). In a case involving allegations of attempting to use a minor in a sexual performance, the trial court admitted evidence of the defendant s Internet use and of the existence of an encryption program on his computer. Specifically, the trial court admitted parts of a computer forensic report, which revealed the defendant used search terms such as Lolita relating to sex with minors. The computer forensic expert who authored the report testified the computer also contained the text of a statute relating to sex with minors as well as an encryption program. The expert stated the encryption program could "basically encrypt any file" and that "other than the National Security Agency" he was not aware of anyone who could break such an encryption. On appeal, the defendant argued that his case was prejudiced because the court specifically used evidence of his Internet use and the encryption program in finding him guilty. The defendant further contended these factors were unrelated to the charges in the case. The appellate court rejected the defendant s argument and found the evidence was appropriately admitted, noting the district court did exclude other and more inflammatory search terms and phrases because it found them more prejudicial than probative Evidence of appellant's computer usage and the presence of an encryption program on his computer was relevant to the state's case. Zubulake v. UBS Warburg LLC, 382 F.Supp.2d 536 (S.D.N.Y. 2005). In the seventh decision issued in this employment discrimination lawsuit, which has addressed numerous electronic discovery topics, the defendants moved to preclude various pieces of information from evidence at trial, including the court s first five opinions relating to its deficient discovery. The defendants argued the earlier decisions which included the court s award of electronic discovery spoliation sanctions against the defendants were irrelevant and unfairly prejudicial. The court agreed, noting jurors will be told all they need to know through the evidence admitted at trial and my charge. The defendants also requested preclusion of discovery correspondence among defense counsel and evidence relating to its failure to preserve monthly backup tapes. The court determined the plaintiff would be allowed to introduce this evidence only if the defendants opened the door by offering evidence regarding the reasonableness of their actions. Finally, the plaintiff indicated that she intended to elicit testimony from defendants' counsel relating to its client s and backup tapes preservation practices. The defendants sought preclusion of defense counsel testimony and argued the testimony would be cumulative since the defendants had already produced information relating to their document retention policy. The court granted the motion, stating it did not see any legitimate need plaintiff may have for calling opposing counsel given the extensive discovery on the issue of and back-up tape preservation and retention. James v. Saks Fifth Avenue, 2005 WL (Va. Cir. Ct. Mar. 8, 2005). The plaintiff sought injunctive relief and damages in a case involving allegations of intentional interference with business and contractual relations, breach of fiduciary duty, conversion, and other charges. At trial, 337

338 a former employee solicited to work for the defendant testified that on two separate occasions he and another one of the plaintiff s top sales employees generated hard copies of their customers' personal information stored on the plaintiff's in-store computers. The employee testified this was done during store business hours for the express purpose of demonstrating to [the defendant] that they had a large number of customers to bring with them. This testimony was corroborated by print-outs of the confidential lists containing handwritten notes and by the other employee testimony. The court found it clear that the defendant knew the employees planned to take the confidential customer lists from [the plaintiff] and use them to solicit business for [the defendant], and knowingly and actively encouraged and participated in this activity. The court awarded over $2 million in compensatory and statutory treble damages. State v. Morris, 2005 WL (Ohio Ct. App. Feb. 16, 2005). The defendant appealed convictions relating to pandering sexually-oriented matter involving minors. The defendant s son testified he called the police after finding pornographic images of minors in the recycle bin of his computer, which the defendant had previously used. During a forensic analysis of the computer, a computer forensic expert mirror imaged the hard drive. Before returning the computer, the expert overwrote the hard drive, erasing all data on the drive. At trial, the state presented the mirror image copy as evidence. The expert testified it was standard protocol not to run tests on the original hard drive in order to prevent corrupting the evidence and stated the mirror image was an exact copy of the original hard drive. The expert further noted he wiped the hard drive because it was corrupt and repeatedly accessing and testing the drive would have rendered it useless. On appeal, the defendant argued he was denied an opportunity to examine the original hard drive to see if it contained exculpatory evidence. The court declared state evidentiary rules permit admission of duplicates and noted the expert had testified that the copy was an exact copy of the original hard drive. The court upheld the convictions, finding the defendant failed to specifically argue what type of exculpatory evidence may have been lost during the copying procedure and the original was not destroyed in bad faith. United States v. Brand, 2005 WL (S.D.N.Y. Jan 12, 2005). In prosecuting charges against the defendant for transporting minors for illegal sexual activity, the government claimed the defendant used America Online instant messaging software in an attempt to engage in sexual conduct with Julie, an undercover government agent posing as a minor. The government sought to admit two transcripts of AOL internet communications between the defendant and two other undercover agents, who had sent and received instant messages from the defendant. The defendant argued the transcripts should not be admitted as they were irrelevant, unfairly prejudicial and potentially confusing to the jury. The court determined one of the chat transcripts was admissible since it was sufficiently similar to the charged conduct, permitting a reasonable jury to infer the defendant was motivated by a sexual intent in his interactions with "Julie." The court found the other chat was not admissible as it was not sufficiently relevant due to its non-sexual subject matter. Smoot v. Comcast Cablevision, 2004 WL (Del. Super. Ct. Nov. 16, 2004). The plaintiff appealed the Unemployment Insurance Appeal Board s decision finding she was terminated for just cause by her employer for violating the company s handbook prohibiting the use of inappropriate and offensive language. The plaintiff had engaged in a four-hour instant message conversation with two of her co-workers on her company laptop, a conversation that had included numerous sexual references and allusions as well as racially derogatory remarks and instances of profanity. The Board found the instant message transcript evidence sufficient to sustain a finding the company had just cause for discharging the plaintiff. On appeal, the court affirmed the Board s decision noting [t]he Board's decision found that the 24-page transcript of the conversation from 338

339 the computer's hard drive as well as evidence that [the plaintiff] signed an acknowledgment that she had received access to the company's handbook was "competent probative evidence" sufficient for a finding for [the company]. EEOC v. E.I. dupont de Nemours & Co., 2004 WL (E.D. La. Oct. 18, 2004). In a case brought under the Americans with Disabilities Act, the Equal Employment Opportunity Commission (EEOC) sought to admit a computer printout from the website of the U.S. Census Bureau. The printout contained the image s Internet domain address and the date on which it was printed. The defendant objected to the admission, claiming that the printout was inherently untrustworthy. Rejecting this, the court determined that the Bureau s website was a reliable source and further observed that in an age where so much information is calculated, stored and displayed on a computer, massive amounts of evidence would be inadmissible if the Court were to accept DuPont's characterization of all information on the Internet as inherently unreliable. Pursuant to Fed.R.Evid. 803(8), the court admitted the computer printout as a public records exception to the hearsay rule. Telewizja Polska USA, Inc., v. Echostar Satellite Corp., 2004 WL (N.D.Ill. Oct. 15, 2004). In a case involving a sales contract dispute, the plaintiff brought a series of preliminary motions requesting exclusion of evidence, including that of an archived Web site. The plaintiff argued that the Web site should be excluded because it constituted double hearsay. Rejecting this argument, the court determined that the images and text on the website were not statements as defined in the hearsay rule. Even if they were statements, the court concluded they would fall within the party-opponent admission exclusion. The plaintiff also claimed the website was not properly authenticated. Acknowledging that the Internet Archive is a relatively new source for archiving websites, the court nonetheless determined that the website satisfied the threshold requirement of evidentiary reliability under Fed.R.Evid. 901 and indicated the plaintiff was free to argue the issue of reliability in front of the jury. Sondker v. Philips Electronics North America, 2004 WL (N.D. Ill. July 27, 2004). In a partial motion for summary judgment, the defendant sought to strike two of the plaintiff s exhibits, submitted by the plaintiff as evidence in favor of denying the motion. The defendant argued the plaintiff should be not allowed to use the exhibits, which were hard copies of attachments, because the plaintiffs did not produce the exhibits during discovery. Contending the defendant should have tried to solve the dispute before filing its motion to strike, the plaintiff maintained the defendant was not entitled to relief pursuant to Fed. R. Civ. P. 37(a)(2) and Local Rule Both rules require a good faith attempt to confer with an opposing party who is not meeting disclosure requests. Attempting to show it met these requirements, the defendant produced a letter it sent to the plaintiff, which requested production of any attachments to s being used as evidence. Determining the defendant s letter did not certify it had attempted a good faith contact, the court denied the defendant s motion to strike. Kerber v. Dairy Queen Operators Ass n, 2003 WL (Minn. Ct. App. July 22, 2003). After being fired for violating a company computer use policy by instant messaging a co-worker, an employee applied for unemployment benefits. The employment department denied her benefits on the grounds that she was terminated for employment misconduct, namely the unauthorized instant messaging. An unemployment-law judge affirmed the decision. Although several lines of the employee's instant message were not work-related, most of the message was devoted to whether Good Friday was a paid holiday. The employment commissioner's representative reversed, deciding that, while her conduct may have been inadvertent or negligent, it did not rise to the level of employment misconduct. The employer appealed the decision, arguing a company handbook prohibited an employee's "personal use" of work computers, although the handbook did not 339

340 explicitly prohibit instant messaging. The handbook also provided an policy that directed the system may not be used for personal business." On appeal, the court affirmed the commissioner s decision, noting the handbook does not put employees on notice that instant messaging or is prohibited among co-workers concerning work-related topics. J.P. Morgan Chase Bank v. Liberty Mutual Ins., 2002 WL (S.D.N.Y. Dec. 23, 2002). In a suit against insurance companies that had guaranteed payment in the event of Enron s bankruptcy, the court weighed the admissibility of several s. The court determined that e- mails authored by senior bank officials would be allowed into evidence and that a reasonable juror could find these s probative of the defendants central proposition that the transactions were actually uninsurable off-the-books loans. Kearley v. Mississippi, 843 So. 2d 66 (Miss. Ct. App. 2002). A criminal defendant was convicted of sexual battery and appealed on several issues including proper authentication of s which he allegedly sent to the victim. The appellate court held that the victim s testimony that she had received and printed the s on her computer was sufficient authentication under the rules of evidence, and the court upheld the conviction. State v. Cook, 2002 WL (Ohio Ct. App. Sept. 13, 2002). The defendant appealed his conviction for possessing nude images of minors, claiming in part that the trial court erred in admitting materials, over the defendant s objection, that were generated from a "mirror image" of the defendant s hard drive. After a detailed discussion of the mirror imaging process, the authenticity of the data taken from the image, and the possibility for tampering, the appellate court found that the trial court properly admitted the evidence. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp.2d 1146 (C.D. Cal. 2002). In a copyright and trademark infringement action, the court refused to find that all evidence printed from websites is inauthentic and inadmissible. Instead, the court found that the printouts were properly authenticated under Fed.R.Evid. 901(a) where the plaintiff's CEO adequately established that the exhibits attached to his declaration were true and correct copies of pages printed from the Internet that were printed by [him] or under his direction. New York v. Microsoft Corp., 2002 WL (D.D.C. Apr. 12, 2002). Microsoft challenged several s appended to the written testimony of one of the plaintiff s witnesses, claiming that the statements contained therein were inadmissible hearsay. The court excluded multiple messages using the following reasoning: (1) they were offered for the truth of the matters they asserted, (2) had not been shown to be business records as required under Rule 803(6), and (3) contained multiple levels of hearsay for which no exception had been established. Sea-Land Service, Inc. v. Lozen Int l, 285 F.3d 808 (9th Cir. 2002). The court ruled that the trial court should have admitted an internal company , which an employee of the plaintiff had forwarded to the defendant. The defense persuasively argued on appeal that the was not excludable hearsay because her remarks in forwarding the manifested an adoption or belief in truth of the information contained in the original . The court ruled that this satisfied the requirements for an adoptive admission under Fed.R.Evid. 801(d)(2)(B). Harveston v. State, 798 So. 2d 638 (Miss. Ct. App. 2001). In a criminal burglary prosecution, the court refused to allow in computer database print-outs under the State s business records exception to the hearsay rule. The court held that the State failed to meet its burden because [T]here was no evidence offered as to the means by which the information was compiled. The only testimony came from an investigating officer who limited his testimony to the fact that law enforcement officers routinely make use of such information. [However, t]he reliability of the information in 'business records' is determined by the competence of the compiler of the 340

341 information and not the extent of the consumer's reliance on information received from another source. V Cable Inc. v. Budnick, 23 Fed.Appx. 64 (2nd Cir. 2001). In an investigation of illegal sales and distribution of cable equipment, the police seized computers believed to contain relevant evidence of the crime. After holding the computers in question, the police sent them to an independent software company for analysis. Appellant's argument implies that, once they left police custody, the computers and any records obtained there from became corrupted and, therefore, inadmissible under Rule 803(6) of the Federal Rules of Evidence. The court found the documents to be sufficiently trustworthy to be admitted under Rule 803(6). United States v. Meienberg, 263 F.3d 1177 (10th Cir. 2001). The government introduced printouts of computerized records and the defendant objected to these print-outs based on lack of authentification. The court held that the government met its burden by presenting a witness who testified that the print-outs were a record of all transactions. The court held that this was in accordance with Federal Rule of Evidence 901(b)(7). Bowe v. State, 785 So. 2d 531 (Fla. Dist. Ct. App. 2001). An statement sent to another is always subject to the limitations of the hearsay rule. People v. Markowitz, 721 N.Y.S.2d 758 (N.Y. Sup. Ct. 2001). In a larceny and possession of stolen property suit, the court admitted computer databases that indicated how much money should have been collected by the defendant toll-booth worker. The testimony of an employee of the company that prepared the databases was sufficient foundation for admission of the electronic records. Hardison v. Balboa Ins. Co., 4 Fed. Appx. 663 (10th Cir. 2001). To prove that an insurance company had followed notice of cancellation requirements, the court admitted computer files and print-outs regarding how the cancelled policy was processed and maintained. The court stated that computer business records are admissible under Rule 803(6) if the offeror establishes a sufficient foundation in the record for [their] introduction. Broderick v. State, 35 S.W.3d 67 (Tex. App. 2000). In child sex abuse prosecution, the court affirmed the trial court s admission of a duplicate of defendant s hard drive, in place of the original. The court concluded that the state s best evidence rule did not preclude admission because the computer expert testified that the copy of the hard drive exactly duplicated the contents of the hard drive. St. Clair v. Johnny s Oyster & Shrimp, 76 F. Supp.2d 773 (S.D. Tex. 1999). [A]ny evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception. SKW Real Estate Ltd. v. Gallicchio, 716 A.2d 903 (Conn. App. Ct. 1998). A computer-generated document is admissible in a foreclosure action, pursuant to the business records exception to the hearsay rule. Monotype Corp. v. Int l Typeface Corp., 43 F.3d 443 (9th Cir. 1994). The court declined admission of a detrimental in a license infringement action, due to the prejudicial nature of the message and fact that the was not admissible under the business record exception. United States v. Bowers, 920 F.2d 220 (4th Cir. 1990). Computer data consisting of IRS taxpayer data compilations is admissible as official records. United States v. Catabran, 836 F.2d 453 (9th Cir. 1988). Computer printouts are admissible as business records under the Federal Rules of Evidence 803(6), provided that proper foundational requirements are first established. 341

342 State of Wash. v. Ben-Neth, 663 P.2d 156 (Wash. Ct. App. 1983). Computer-generated evidence is hearsay but may be admitted as a business record provided a proper foundation is laid. United States v. Vela, 673 F.2d 86 (5th Cir. 1982). The court admitted computerized telephone bills under the Business Records exception where a telephone company employee laid the proper foundation for the reliability of the telephone bills record-keeping process. In describing the reliability of the computer generated documents, the court stated that the computerized reports would be even more reliable than... average business record(s) because they are not even touched by the hand of man. This document is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for research and information on the subject of electronic evidence. While every attempt has been made to ensure accuracy of this information, no responsibility can be accepted for errors or omissions. Recipients of information or services provided by Kroll Ontrack shall maintain full, professional, and direct responsibility to their clients for any information or services rendered by Kroll Ontrack. For more information on electronic discovery, paper discovery and computer forensics, contact Kroll Ontrack, Inc